You may have read recently about ASDA dismissing an employee from ASDA in Bradford after he posted a link to an anti-religion video sketch by comedian Billy Connolly on his social media. This case has recently focused attention on how a social media post can get an employee into trouble with their employer.

What happened?

Mr Leach was employed by ASDA. He posted the video on his Facebook page and an ASDA colleague re-shared the video post. This then came to ASDA’s attention after a fellow employee complained about its content.

Mr Leach faced an internal disciplinary hearing and was dismissed without notice for breaching ASDA’s social media policy. ASDA insisted that the social media post was gross misconduct justifying dismissal. Mr Leach outlined points in his disciplinary hearing including the fact that he had been disabled after a brain injury caused by a car accident when he was three years old. Further that by the time of his dismissal, he had taken down the post and apologised to ASDA and his colleagues who his post had upset.

Following his dismissal, Mr Leach appealed and his case attracted media attention. At his appeal, Mr Leach was reinstated (and the penalty reduced to a final written warning). However, the appeal hearing ruled that he had committed an act of gross misconduct and had breached ASDA’s social media policy.

The case brings up some interesting issues about why an individual posting material on their own social media may breach their employer’s social media policy.

What would breach an employer’s social media policy?

The advent of social media has brought into focus why an employer should have a social media policy.

Employers must consider each alleged breach of policy on its merits and consider the content of any social media posting. Some general principles that arise from various cases have explored these issues include:

  1. Employers should have a written social media policy.

In Lerwill v Aston Villa FC (2010) a football club dismissed an historian for making comments on an online forum. He was reinstated in an Employment Tribunal hearing as the club did not have a social media policy. The Tribunal held that the dismissal was therefore unfair.

  1. There must be a direct link in some way to the employer.

In Smith v Trafford Housing (2012), an employer demoted a Christian employee who had posted comments on his personal Facebook page. The High Court had to decide whether the employer was in breach of contract in demoting the employee. The Judge considered the posts plus the employer’s policies. He decided that a reasonable reader would not have concluded that the postings were inappropriate or could be linked to the employer.

  1. A previous course of conduct, such as a warning to a staff member about a failure to follow social media policy of the employer, leaves an employee open to dismissal.

In the case of Richard Page v Lord Chancellor (2019) a Christian Magistrate who had a belief which opposed same sex couples and single parents adopting children lost an appeal about his dismissal. The employer had previously reprimanded him for making comments against policy. Further, the employer had requested he seek advice before making media comments and he failed to do so.

Freedom of expression

Article 10 of the European Convention on Human Rights (ECHR) allows everyone to have the right to freedom of expression. This includes the right to hold opinions and to receive and impart information and ideas without interference by public authorities. It also, however, includes a duty to behave responsibly and to respect other people’s rights.

Public authorities can restrict the right to freedom of expression if lawful, necessary and proportionate in order to protect other people’s rights and reputation. In many employment contracts, there will be a reference to abiding by an employer’s social media policy. This can arguably restrict a free expression of opinion on social media where the posting of inappropriate content may leave an employee open to disciplinary proceedings and even potential dismissal.

In an employment context, an employer has a business and good reputation to protect. Therefore, a social media post that may seem innocuous to some, may be to an employer a tweet too far.

If your company does not have a social media policy and you would like one drafting; or if you are an employee facing disciplinary action about a social media issue, our employment team can help. Call us today on 0800 988 7756 for a FREE initial discussion.