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Social media policies – a clear win for employers

The issue of employees’ use of social media has been brought back into focus following the Football Association’s decision to charge Ashley Cole with misconduct in relation to a Twitter comment he made about football’s governing body. Ashley Cole’s club Chelsea have also said he may face disciplinary proceedings.

The offending tweet which can be seen here was in response to an Independent FA Commission’s finding that John Terry was guilty of making abusive and insulting comments to Anton Ferdinand, which included a reference to his race, during a match between Chelsea and QPR in October 2011. In reaching their decision, the Commission called into question the evidence that had been given to it by Mr Cole.

Speaking on BBC Radio 5 Live Sport, former England player Graeme Le Saux commented that the FA must make players aware “there are consequences” for inappropriate use of social media.

The FA’s subsequent decision to charge Mr Cole with misconduct, on the basis that his comment was improper and threatened to bring the game into disrepute, emphasises the importance of having a social media policy in place to address issues of misconduct. While Ashley Cole will not be banned from playing for England following his apology to FA Chairman, David Bernstein, his own club, Chelsea, have indicated that Mr Cole will likely face repercussions because of his outburst. Chelsea’s manager, Roberto Di Matteo, stated that: “We’ve got a social media policy at the club… There’s going to be a disciplinary process – action – against the tweet and that’s how I’ll leave it.”

Ashley Cole’s heat of the moment tweet reinforces that policies are required even if employees do not use the internet and/or social media directly in the course of their job.

Without such a policy in place to establish what constitutes unacceptable on-line behaviour and the implications of failing to adhere to the policy, employers may find that the disciplinary options available to them are limited.

This is highlighted by another football-related employment tribunal case, involving Aston Villa Football Club. Mr Lerwill was employed as a football historian for Aston Villa. Mr Lerwill came across comments criticising an article alleged to have been written by him on an unofficial fan page. He then responded denying that he had written the article and made a number of inappropriate remarks. It transpired that the original criticisms of Mr Lerwill’s work had been made by Aston Villa’s own media team.

Mr Lerwill was then dismissed for criticising his colleagues in a public on-line forum and the manner in which this reflected negatively on the Club.

In the Employment Tribunal, Mr Lerwill successfully challenged his dismissal as being unfair. The tribunal’s decision was based on the fact that the Club had not provided any guidance to Mr Lerwill that comments made on-line could lead to disciplinary proceedings, and ultimately dismissal. Accordingly, Aston Villa’s decision to dismiss was deemed to fall outwith the range of reasonable responses of a reasonable employer.

In this age where a quick tap of a smartphone can result in a public tweet or status update, employers should look at tightening up their procedures to ensure their business is protected.

It seems sensible to ensure that the appropriate use of social media (both in and outside of the workplace) and the consequences of misuse is set out in a policy and then communicated to all employees. If employees, as in Mr Lerwill’s case, have not been put on notice employers will struggle to justify any subsequent disciplinary action.

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