The continued, and rapid, expansion of social media, continues to have an almost daily impact on everyday life, writes Lottie Seaborn, a senior associate with Birketts LLP.

For many employers, the concerns are about potential online disclosure by employees of commercially sensitive information and the “bad-mouthing” of their employer, or worse still, their customers.  

This is a problem known only too well by pub chain Wetherspoons which dismissed a manager after she had posted rude and abusive comments about the pub’s customers on Facebook (Preece v JD Wetherspoons plc) (the dismissal was held to be fair by the Tribunal).

However, employers won’t always be able to rely upon damage to their reputations as a fair reason for dismissal. The employer in the case of Whitham v Club 24 Ltd t/a Ventura was found to have acted unfairly when it dismissed an employee after she posted “relatively minor” comments about her workplace on Facebook; agreeing with a friend’s comment that she worked with “a lot of planks”.  

The employer was criticised for having no evidence that the comments had caused or were likely to cause harm to its relationship with customers (alongside whom the employee worked).

It is not enough therefore for employers to rely on the fact that such comments may cause damage to their reputation without actually assessing the risk of harm.  

So what options does an employer have to prevent this from happening

Consider what access and level of usage to permit during working hours and implement a clear policy informing employees of the rules. Employees have no general right to access social networking sites during working hours so an employer can ban access altogether.

Alternatively, many employers allow employees access to a limited number of sites during break times and before and after work. If internet use will be monitored to ensure compliance with company rules, clearly set this out in the policy.

Ensure that any policy addresses cyber-bullying and the inappropriate reference to the employer, its employees and customers/suppliers, both when using the employer’s system and also when using email and the internet away from work and inform employees that a breach of the rules could result in disciplinary action and possibly dismissal.

Employers should also consider providing employees with diversity training covering the use of the internet and e-mail, which clearly explains what is and is not appropriate conduct and use.

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This article provides only a general summary and is not intended to be comprehensive. Specific legal advice should be taken in any individual application. Law covered as at November 2011. © Birketts LLP 2011.