What to do when a team social event turns up on social media
23rd July, 2015
Sean Hick, Genus Law
What happens on the team social, stays on the team social…right? Well, not when a team member shares a ‘practical joke’ via social media. Then, the extension of the ‘workplace’ to include corporate teambuilding events takes on a whole new meaning and extends online. Such is the widely reported case of HSBC employees who created and shared (via Instagram) a jihadist style beheading video. Sean Hick, of Genus Law, highlights the key implications of the case to employers and employees alike.
The dismissal of several HSBC employees over the creation and social sharing of this ‘abhorrent’ video has been widely publicised. The video was recorded during a teambuilding exercise which had been arranged by the company for the group of employees. One of the employees then uploaded the video to Instagram. Whilst the video was removed some time shortly after its upload, it was seen by other HSBC employees and was brought to the attention of HSBC by the Sun newspaper.
The bank immediately took the decision to dismiss the employees involved (although it has refused to confirm how many) and has apologised for any offence caused.
Was the decision fair?
Whilst the video has created shock and outrage, the issue of importance to employers is, whether or not the dismissal was fair or could lead to any successful Employment Tribunal claims.
In order to reduce the chance of a successful claim of unfair dismissal being brought against HSBC (if the employees in question had over two years’ service), HSBC must consider whether a decision to dismiss is within the “band of reasonable responses” or put simply, would the decision be one which was open to a reasonable employer?
The answer to this question lies within the facts of the case. Whilst we have very little detail on the reasoning behind the decision, in reviewing the information available and recent caselaw, HSBC should have considered the following points:
• whether the definition of the “workplace” could be extended to include this corporate teambuilding event. It is well established in caselaw that corporate events can be an extension to the workplace. However, the extent to which this applies will depend on the facts of the case;
• to what extent did the video being made available publically (via Instagram) have a damaging effect on HSBC’s reputation? The public nature of Instagram should be taken into account when considering what constitutes a reasonable response as, had the video not been made public, the reputational damage to the bank may have been reduced and a decision to dismiss is more likely to be unfair;
• to what extent the employees in question had been aware of HSBC’s policy on social media. An employer may find it difficult to discipline or dismiss an employee for something which they were not aware was inappropriate. Whilst there is no denying the video was in poor taste, if there was little or no guidance on what was expected of those employees involved, it is possible that the decision to dismiss could be unfair; and
• what mitigating factors could be considered? For example, HSBC should take into account whether the video was expediently removed, any attempts were made to make good and apologise for the actions of the individuals and to what extent each individual was a ring-leader or follower.
Social Media – an increasingly blurred line
Employees and employers alike should be aware that the interaction between social media and the workplace is a complex and changing area of the law.
Activities which are placed in the public eye in a manner that can be linked to the company (e.g. via Instagram, Facebook, Twitter etc) which:
• take place inside or outside the workplace;
• whether with colleagues or not;
• cause potential damage or embarrassment to the company,
can be open to legitimate disciplinary action.
However, employers need to be careful not to take a knee-jerk reaction and/or an inconsistent approach to employees that post inappropriate content online. They must be careful to consider whether any decision is within the “range of reasonable responses open to a reasonable employer”.
At Genus Law, we are experts in drafting and implementing social media and Equality and diversity policies, together with all other employment policies and procedures. We also offer training sessions to ensure both you and your employees get it right first time and we can guide you through the minefield of disciplinary proceedings. To speak to a member of our employment team, call 0113 320 4540 or email [email protected]