Whilst most eyes will be on the General Election today, some may also be on the twitter spat which has broken out between One Direction band member, Louis Tomlinson, and his former band mate, Zayn Malik. A very public war of online words has commenced on twitter between the two ex-band mates. Opinion is very clearly divided as to which musician is in the wrong.
Social media feuds between employees
As an employment lawyer, I am being asked more and more frequently to give advice to employers as to when (and how) to intervene when such social media issues occur between employees. Employment lawyers are now having to grapple with issues such as “cyber bullying” and “online social exclusion” on a sometimes weekly basis.
Is the conduct within the course of employment?
Before making a decision about whether to intervene in such online spats between employees, an employer should consider whether or not the conduct falls “within the course of employment”. Historically employment tribunals have interpreted this definition very widely and frequently in favour of the employee. However tribunals are also keen to emphasise that each case will be fact specific. Generally an employer will only be liable for acts of its employees which are authorised by it. Therefore if an employer makes clear to employees what use of social media is prohibited, this would be a potentially good defence to any claim on the basis that such conduct took place between employees outwith the course of employment. On this basis, employers should have a clear social media policy in place and provide regular training to its employees as to unacceptable use of such social media.
What steps should be taken by the employer if social media misconduct falls within the course of employment?
- Where possible, employers should encourage employees to make use of the formal grievance procedure. This will allow the employer to create and maintain a paper trail as to the extent of the alleged misconduct. This should also allow the employer to note the effect of the misconduct on the disgruntled employee. This information might also prove useful at any future tribunal hearing.
- Employers should ensure that any bullying and disciplinary policies extend to include the use of social media. This might include the use of offensive or intimidating language directed at another employee on social media.
- Lastly employers should also take action against employees who commit acts of misconduct on social media. In order to do so, the employer will require to rely upon a robust social media policy.
Ultimately whether you are #TeamLouis or #TeamZayn, it seems clear that this recent episode of #KeyboardCourage looks set to prolong the #ZaynPain for another few weeks …