There have been a number of stories in the media of late, in which the conduct of employees on various social media accounts have caused repercussions for them, and sometimes even led to dismissal. The case of The British Waterways Board v Mr David Smith (UKEATS/0004/15, 3 August 2015) is a recent example of how the use of information posted on Facebook can lead to the fair dismissal of an employee – http://www.bailii.org/uk/cases/UKEAT/2015/0004_15_0308.html
Social media, emails and texts can all be used as evidence in employment cases, so just how careful should both employees and employers be when leaving a paper trail?
It used to be that evidence given in witness statements, appraisal forms and perhaps the odd email, was the mainstay of evidence submitted to the tribunal. Now however, much of staff communication can be done via text, email and even social media. It’s much easier to misinterpret a meaning in the written form, without the addition of body language, tone and setting to create a background to the conversation.
Similarly, emails sent quickly from phones, or late at night perhaps after a glass of wine or two, can point to the real feelings of a disgruntled employee, which a verbal trail may not have picked up. What is said in email and text messages essentially as a throw away comment, may end up in as evidence in a grievance or disciplinary hearing, or even in front of a tribunal.
There is a formality attached to letters, minutes from meeting or appraisal feedback, which can create a certain mind-set. And it’s usually one which is careful to avoid any discrimination or repercussions. However, the casual and instant nature of emails and text messages can all influence the writer, and can sometimes allow a lapse in judgment to be documented for all to see.
Email correspondence, text messages and posting on social media can be used to build a picture of the working relationships of colleagues, or any discriminatory attitude which may not have come to light in previous, more guarded conversations.
Employers and employees should be mindful and apply caution when tempted to send a quick one line email or text message, this is still a document and the paper trail that the document leaves could be used as evidence at some point in the future.
Perhaps one piece of advice is to approach all texts, emails and social media as though they are formal documents, which one day could be used in evidence.