Social media is now second nature and we all know how easily comments can be posted to the public and how quickly comments can become viral. This is becoming an increasing problem for FE colleges, with tech savvy students spending a majority of their time online. Issues can also arise when students connect or follow teachers. It is therefore not surprising that FE colleges are seeing an increase in issues involving the use of social media, whether this relates to student to student contact or posts being made by staff.

So where an issue arises as a result of a member of staff using social media inappropriately, what action can their employer take? Well, there have been a number of cases in which the courts and tribunals have been required to assess the nature of comments posted on applications such as Facebook, YouTube and Twitter and to assess whether the employer’s actions in dealing with such posts was reasonable. There has been a common theme throughout the decisions on these cases, which is that action should be reasonable and proportionate.

In addition, a recent case has identified that an understanding of how Twitter (and other social media applications) work can be necessary to decide whether an inappropriate tweet should justify dismissal. It appears that such understanding goes further than just the employer and employment judges are now likely to need to understand the potential impact that an offensive tweet or post could have following an appeal which found that a Judge’s failure to appreciate the audience of an employee’s tweets led to an incorrect finding of unfair dismissal.

Case summary

The case involved an employee who was dismissed for posting offensive tweets. The employee’s Twitter account was personal, however, he followed the company’s retail stores and they, in turn, were encouraged to follow him.

The former employee brought a claim for unfair dismissal. The Judge decided that he had been unfairly dismissed, and a key factor was that – in the Judge’s view – the tweets were private.

Unsurprisingly, the employer appealed this decision. It argued that as stores, and potentially customers, could access the offensive tweets, they could have seriously damaged the company’s reputation. The Employment Appeal Tribunal (EAT) agreed and – the perhaps more tech savvy EAT Judges – found that the unfair dismissal should not stand.

Where does this leave FE colleges?

Although this case related to the retail sector, it is helpful in demonstrating that teachers or staff who post inappropriate or offensive comments (in this case tweets) will not necessarily be able to hide behind the fact that their social media account is personal (particularly where say, they are connected with students, colleagues and/or parents).

However, as with most of the social media dismissal cases, the position still remains uncertain particularly when dismissing an employee. The EAT in the above case refused to provide general guidance on these issues and so the decision does not mean that offensive posts on Twitter can always justify dismissal and the fairness of such a dismissal, will depend on what was said and who could have or did see the offensive comment.

In light of the above issues, FE colleges would be sensible to ensure that they review and update their communication, IT and disciplinary policies to ensure that teaching staff are clear on the rules on using social media, that the policies cover situations whereby inappropriate or offensive comments are made on social media and the action that may be taken. FE colleges would be well advised to go a step further than this and consider putting in place a specific social media policy to deal with issues and ensuring that teaching staff are trained and aware of the rules.

Sarah Burke is a solicitor at Thomas Eggar, the law firm

This entry was posted in FE News by Paul Champion. Bookmark the permalink.

About Paul Champion

Some have called me a leader, and a entrepreneur, they say I have integrity, presence and skills to ensure continuous improvement and success in whatever challenges I face. They also tell me that I am positive, resilient and motivating. I say, I'm just a normaI guy from Gateshead in the North of England, who started as an apprentice engineer. I have been in the right place at the right time and in the wrong place at the wrong time! I have successfully initiated and led complex organizations and situations to completion and success, and I have been in some jobs where success seemed untouchable. Mainly though, I have tried to learn everyday, help people to progress and learn the skills they need to be successful. I have had the privilege of working with some great people locally across the UK and more recently internationally in Asia, Europe and now USA, where I am lucky enough to work for www.3aaa.co.uk where I am head of 3aaa USA. This website is just me having an outlet to talk about all those thoughts, ideas and things I learn that pass through my head every day when I face the challenge of doing business. I will also rant on about how great apprenticeships are, and how you can help change peoples lives through them. After all thats how I got to do the great things that I have done, and also I am still an apprentice everyday! All I ask is that if you find it interesting then leave a comment and share what you read. THANK YOU.

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