December can bring with it a more relaxed atmosphere in the workplace. Employers should watch out for greater informality in the style and content of emails and the downloading or distribution of inappropriate material, which can lead to claims against the employer for discrimination or harassment either by the recipient or by a colleague who views the inappropriate communication.
Issues may also arise if employees post pictures of or comments about the office party on social networking sites such as Facebook or twitter or upload videos onto YouTube. Such pictures and comments, particularly if they specifically reference the company or show a company logo or employees in company uniform, may cause damage to the company’s reputation. The newspapers regularly report instances of embarrassing emails, photos and videos that have “gone viral”, spreading across the world in seconds.
Employers should ensure that they have a social media policy in place which extends to work-related online conduct both in and outside working hours. The policy should make it clear that, if employees post comments or upload photos or videos which may bring the company into disrepute, this may lead to disciplinary action. Disciplinary policies should also be wide enough to cover such conduct even where, as is often the case, it takes place outside working time.
However, it is important that employers do not over-react when made aware of online postings by their employees that may be construed as giving rise to potential reputational damage. There are a number of cases where employees have succeeded in claiming unfair dismissal in circumstances where a Tribunal has found that comments on Facebook/twitter were “relatively minor”, where “no reasonable reader” would conclude that comments on someone’s wall were posted on their employer’s behalf or where there was no evidence of actual reputational damage. Whether the relevant page where the posting is made is public or not can also be influential. Furthermore, a Tribunal may take into account the right to freedom of expression under Article 10 of the European Convention on Human Rights, although limitations on that right can be justified in the interests of the protection of someone’s reputation.