Twitter, employment law and common sense.

A case involving social media and employment has made its way to the Employment Appeals Tribunal.  The case involved an employee dismissed for his use of Twitter, and is interesting to HR for a few reasons.

Firstly, it contains some legal folk getting to grips with the terminology of the social world, which is always amusing.  Secondly, it contained this gem of a sentence, referring to the tweets in question.

In her witness statement, she added that they were offensive to other groups of people including dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people.  As you would expect, I disapprove of the latter.  But I fairly sure none of the others are protected characteristics so I feel it is acceptable to laugh.  Especially at the caravan drivers bit.

The facts of the case are these.  The claimant, Mr Laws, worked for the retail outlet Game.  His job was risk and loss prevention.  He set up a Twitter account and followed a number of Game’s stores, each of whom had their own Twitter account, in order to monitor their tweets and any potential inappropriate Twitter activity by employees.  Many of these stores followed him back in return.  At least one of the stores had tweeted from their account suggesting that their followers might also want to follow the claimant.  (It is unclear from the decision if the concept of #ff was explained in evidence).  However, despite the fact that there was a clear link to his work even though the account itself did not identify his employer, Mr Laws tweeted all manner of offensive tweets, including some delightful use of the C word.

Someone told Game, and Mr Laws was suspended, investigated and subsequently dismissed for gross misconduct.  Another interesting sentence in the decision is this one, referring to the date of Mr Law’s suspension.  By that time he had enlisted the assistance of his 14 year old son, and taken down his twitter feed.  What would we do without Generation Z, eh?

The case results in a tribunal hearing to determine if the dismissal was unfair.  The claimant doesn’t dispute he sent the tweets, but did argue that the sanction was too harsh.  The tribunal held that the employer hadn’t been reasonable in the decision to dismiss.  They took into account that the tweeting was done in his own time, that he was using his own device and that the activity wasn’t part of his job.  For me, these arguments just don’t stand up in the real, social world.  I tweet HR stuff.  My twitter bio doesn’t identify my employer.  But I know that I am followed by lots of people that work at the same place, and my tweets can be seen by our customers, potential employees, my boss, anyone.  And I am capable of bringing my employer into disrepute by what I post. Some might argue my One Direction tweets already do. Social blurs the boundaries between work stuff and not work stuff. My advice is simple.  Get two accounts or protect your tweets.  Then you can misbehave in private if you wish.

One other important point came up in the first hearing.  Game had no social media policy.  You do need one.  It doesn’t need to be the size of a brick.  But you do need to tell people what is okay and what is not.

Game appealed, and the decision that the action taken by Game fell outside the responses of a reasonable employer was overturned.   The useful bit of the case is that the tribunal were invited to lay down some general guidance on misuse of social media in the context of unfair dismissal claims.  They declined to do so.  In a break out of common sense, they said that the existing law was good enough, and that cases would always be very fact and context specific.  What employers need to do is what they already required to do – be reasonable in the circumstances. They also said that companies will want to find a balance between the employee’s right of freedom of expression and managing their reputational risk.  They finished with this: For us to lay down a criteria by way of guidance runs the risk of encouraging a tick box mentality that is inappropriate in unfair dismissal cases.  Awesome.

What seems to me to be clear from this case, is that the claimant was a bit of an idiot.  And we should not generate guidance, binding case law or policies, based on or for idiots.

You can think what you like.  You can say what you like.  You can pretty much tweet what you like, unless you are breaking the law with your 140 characters.  But a little common sense would tell you that tweeting whatever comes to mind, especially when it includes expletives, obscenities and insults (not to mention some very dubious spelling and grammar) is going to cause you an issue if that account is linked in any way to your job.  Common sense.  Something that should be exercised alongside your social media use at all times.  And if you don’t know how to do that, you could always ask a 14 year old.

Stuff people say to me about social media

Anyone who reads my blog or follows me on twitter will know that I am passionate about the opportunities that social media brings to us, both professionally and personally.  Being active on social media has developed me, challenged me, connected me, and helped me make some wonderful friends.

I have noticed lately that when I meet people who know I’m actively social, they keep saying the same things, asking me the same questions.  So I thought I’d share them, and my usual responses.

How do you find the time?

The answer to this one is simple.  If you want to do something enough, then you will find a way and make the time.  And as the saying goes, if you don’t, you will find an excuse.  That is why there are usually more people down the pub than in the gym.

I know I should give it a go.

Usually said in the same tone of voice I use when I am pondering tackling my ironing basket.  See above comment.  Here’s the thing – if you are thinking about getting social, you have to know why you are doing it.  Because if you don’t have a good why, an aim, then you will find it hard to be motivated to get going or keep going.  My why is simple.  I use social media to learn from others, to make great connections, and to get updates on One Direction.

Isn’t Twitter just about people saying what they had for breakfast.

No.

I don’t know what to say.

Don’t worry about it too much.  You are not crafting a novel. Just stay away from the obvious inflammatory stuff.  If you worry about it, overthink it, you will never do it.

How do you cope with the constant stream of stuff coming at you?

Cognitive overload is a real thing.  And it’s not just about social media.  Emails, phone calls, text messages, voicemails, instant messages, alerts, notifications.  We are constantly connected, constantly interrupted.   You can find a way to manage the social stuff just like you do with the rest of it.  In Twitter, I use lists.  I have ones for all the people who I really want to keep in touch with, be able to check at a glance if they’ve got a new blog post out.  Some people use apps or feeds.  You also have to be selective on who you follow and what you read, or you could easily be overwhelmed.  You can’t catch every tweet so don’t even try.

If we open all this stuff up to our employees, won’t they abuse it?

Possibly.  Or possibly not.  There will always be an employee or two who time waste, or who push things a little too far.  Your probably know exactly who they are at your place.  And if people want to waste time, they will.   They will take an extended smoke break.  They will stretch their lunch hour out a little.  Meander around the building.  Deal with them as you need to, for social stuff or that stuff.  This is the same argument that people made when email and the internet was first introduced.  Someone probably sat around a meeting table when Alexander Bell invented the telephone and discussed whether or not employees would make too many personal calls on it.  Employees timewasting on social media is an outcome of another problem, not the cause.

What if our employees do things that they shouldn’t on social media?

They probably will.  As I’ve blogged before, employees have always done stuff that they shouldn’t, but we deal with it.  If you close social media down for this reason, you will lose all the potential benefits too.

I don’t know how to do it.  There is all this terminology that I don’t understand. 

It takes a little getting used to, just like anything new. But it isn’t all that hard, if you want to learn it.  See earlier comments.  When it comes to HR in particular, there is a welcoming community who will help you along the way.

Isn’t it a bit sad? 

This all depends on your point of view.  Nothing is sad if you get some benefit from it or enjoy it.  Can you take it too far?  Yes of course you can. I was mindful of this recently.  Visiting Las Vegas, I stood to watch the fountains at the Bellagio.  They are truly a fantastic sight.  But was I struck by how many people were engaging in the experience through a lens, rather than being sufficiently present to truly appreciate it.  I tweeted a photograph with the caption ‘watching the watchers’.  There is balance in all things, including social media.  But to me, there is nothing sad about learning, reading, collaborating, chatting to my friends.

belagio

Isn’t it just for the younger generation?

Nope.  It is true that the younger you are, the more you have grown up with this stuff, the more it is second nature. For those currently at school, there is no time before the internet or the mobile phone.  But writing it off as something for those pesky kids is dangerous and inaccurate.  The evidence points to the fact that it simply isn’t the case.  It looks like you can teach an old dog new tweets.

It doesn’t apply to us / me / our business.

Whether we like it or not, believe it or not, social is the new normal.  This is the world that we live in, today and tomorrow.  It isn’t going anywhere.  The individual platforms might come and go, trends will rise and fall, but we live in a  mobile, connected, digital world.  Your customers are there, your employees are there, your friends are there.  You can choose if you want to be there too.  And it is a choice. But there are risks with not engaging too.

When I have answered all of these questions and comments, I usually say simply this.  Just give it a go. Dive in, be you, share stuff.   And if you have any more questions, tweet me.

 

And thank you to the lovely people at @IIPtweets for this image:

 

social is the new normal