The popularity of sites such as Facebook and Twitter is rising. Social networking sites are increasingly being used by employees to air their workplace gripes and grievances amongst friends and the wider world. But employers are understandably keen to clamp down on comments made by employees that could potentially have a detrimental impact on their organisation’s image and reputation. More and more employers are introducing social media policies which clearly define what is (and more importantly what is not) acceptable use of social networking sites both in and outside of the workplace. In the UK, our experience is that a well-drafted social media policy can assist an employer in fairly dismissing an employee for improper use of sites such as Facebook and Twitter.

But the position is different in the US. Recently, the US National Labour Relations Board (NLRB) has cracked down on the use of social media policies which are so widely drafted that they effectively prohibit an employee engaging in “protected concerted activities” on social networking sites. “Protected concerted activities” under the US National Labour Relations Act (NLRA) are activities which employees may partake in without fear of retaliation by the employer, including the right to unionise, bargain collectively, and seek to improve workplace rights and conditions. The NLRB can require employers to amend their social media policies if they prevent an employee engaging in such legitimate activities. Examples of prohibitions in social media policies that would fall foul of employees’ NLRA rights include:

• preventing staff befriending one another on social networking sites;
• prohibiting staff from discussing inflammatory topics on social networking sites;
• preventing staff expressing opinions about work satisfaction or dissatisfaction on public websites; and
• restricting employees from releasing non-public company information on public websites.

This does not mean that US employees have carte blanche to post whatever they like about their workplace on social networking sites. Derogatory and unjustified comments about a company’s products or services which are likely to cause significant reputational damage will still be outlawed, and in reality the topics for legitimate discussion between colleagues may be limited.

The NLRB’s approach in the US to some extent reflects the approach the UK Employment Tribunals have taken when considering unfair dismissal cases. Take for example the case of Mr Stephens, a store manager at Halfords, who created a Facebook page entitled “Halfords workers against working 3 out of 4 weekends“. The page was created by Mr Stephens in response to a workplace re-organisation which Halfords were consulting on. Halfords dismissed Mr Stephens for breach of trust and for posting confidential information on Facebook. Had this happened in the US, it is likely that Mr Stephens’ actions would have constituted a “protected concerted activity” and he would have been protected against retaliation (dismissal) by the employer. In the UK, the Tribunal took a similarly dim view of Halfords decision to dismiss him, finding the dismissal outside the range of reasonable responses and therefore unfair.

Contrast this with the case of Mr Crisp, an employee of Apple, who posted a series of comments on his Facebook page about Apple’s products, including “jesusPhone” (a reference to the Apple iPhone). When the comments were brought to Apple’s attention, it instigated disciplinary proceedings against Mr Crisp who was subsequently dismissed. The Tribunal, when considering the fairness of the dismissal, had particular regard to the fact that Apple made very clear in its policies that its brand and image were core values and that derogatory comments posted on social media were likely to constitute gross misconduct. Against this backdrop, his dismissal was held to be fair. Had this taken place in the US, Mr Crisp’s comments would not have fallen within the “protected concerted activity” category and he would not have been protected against dismissal.

But what (if any) impact does the position adopted by the NLRB in the US have on UK employers? UK employers will still be free to draft all-encompassing social media policies which dictate what employees can and cannot post on social networking sites. Whilst that remains the case, it is important to remember that in the UK, an employer wishing to dismiss an employee for breach of company policy must always act reasonably in treating that reason as sufficient to justify dismissal. There may be cases where breach of company policy is not enough to justify a fair dismissal. The real impact may be felt by large businesses with operations in both the UK and US, as a one-size-fits-all approach to workplace policies and procedures is unlikely to be satisfactory going forwards. Businesses will instead need to consider implementing separate social media policies in the US and UK, and ensure that their US policy is compliant with the protections afforded to employees under the NLRA.

Our employment lawyers can assist in drafting and implementing an appropriate social media policy which is specifically tailored to your organisation and its business needs. To discuss your requirements in confidence please contact Howard Hymanson, Head of the Employment Group at Harbottle & Lewis LLP, on 020 7667 5161 or at howard.hymanson@harbottle.com.

11 September 2012