CorpComms Magazine

Don't bite the hand that feeds you, so the old adage goes, but when it comes to Twitter and Facebook, it's increasingly a case of don't deride the hand that feeds you.

While some employees may take exception to being censored on their private Twitter and Facebook profiles, making disparaging comments about bosses, employers or clients on personal accounts is an increasingly risky business. This is especially true for employees who work for companies that have taken extra steps to protect their brands by bolstering provisions in employment contracts.

Take Apple, for example. It recently fired a retail store employee for gross misconduct after the individual posted negative comments about the company on Facebook.  The technology giant's decision was upheld by a UK employment tribunal after a Facebook friend of the employee showed the negative post to the store manager, despite the fact that the negative comment was made on a private account.

Like a growing number of companies, Apple has stringent guidelines in place to protect its brand. According to the initial report, Apple 'made it absolutely plain throughout the induction process that commentary on Apple products, or critical remarks about the brand, were strictly prohibited'. The tribunal ruled that posting even a seemingly private comment 'does not give privacy protection'.

If this is the case, then any communication could be considered 'not private', giving employers the right to take action over any posts or comments they deem to be damaging.

The US has seen a spate of similar incidents. Over the summer the US National Labor Relations Board dealt with a series of cases where employees were fired because of Facebook posts. But the first amendment in the US may offer more protection for employees there than in countries such as the UK: a US court ruled earlier this year that employees could not be disciplined by their employers over the content they post on Facebook.

It is not just posts about bosses and companies that could fall foul of employment law, however. IKEA fired a manager at one of its German stores after the employee was found to have expressed right-wing extremist views on Facebook.

According to an email sent by the retail giant's spokesperson: 'IKEA received a tip that an employee in a managerial position in our store in Wallau (western Germany) expressed opinions and views on Facebook that are in no way compatible with our values.'

IKEA said it took such allegations seriously. A spokeswoman said: 'Cultural and religious diversity are values that form the foundation of our daily co-existence. We can never accept these IKEA values not being respected in everyday working life.'

'Discriminatory posts are the among biggest social media risks to companies in the UK. If an employee posts something discriminatory on a site that is then seen by a fellow employee the employer could then be vicariously liable under the Equality Act,' notes Aron Pope, senior associate at Fox Williams.

Pope points out that an employer can still be vicariously liable even when the posts are not made at work. If an employee could identify a colleague posting discriminatory messages from accounts they use to talk about work issues, an employer could find itself vicariously liable.

Graham Shaw, specialist employment lawyer at law firm TLT, thinks companies need to be careful when considering what rules to implement regarding social media. 'When composing policies employers need to identify key risk areas specific to their business. For example, how important is reputation? Is the type of business particularly sensitive to public opinion and trust? Are certain contracts or clients confidential?' advises Shaw.

If the brand's profile is especially sensitive to public opinion, Shaw suggests that companies should make this expressly clear. 'By having effective policies in place, employers can reduce the risk of being found liable for the discriminatory acts of their employees and will also be in a better position to defend unfair dismissal claims, as they will be able to point to the social networking policy which the employee has breached,' he explains.

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