Social Media and the Employer: Constructive Dismissal

Social media’s deepening integration in the workplace is making it a necessary tool for certain employees. Sales staff, for example, use it to liaise with potential clients, network, gain referrals, and sell. Necessity makes it important and that in turn raises potential liabilities for employers.

Employment contracts can be written, oral, by practice or a hybrid of the two. The important elements: the essential terms, drive many a legal dispute over dismissal. Constructive dismissal—when an employee is considered legally dismissed because of changes to an essential term of their employment contract by the employer [this is also a basic definition] —is relevant to this discussion.

It is foreseeable that social media use will find itself in the midst of a constructive dismissal claim. Perhaps an employer will change their policies and deprive or limit a salesperson’s use of it. Their sales suffers, income subsequently drops and that is enough for a claim. Or a supervisor removes an employee from a social media system used for internal communications; a Facebook group, for example. The affected employee views it as constructive dismissal and files an action.

These scenarios are distinctly possible ones which expose employers to financial liability.

The key is when permitted social media becomes an essential contractual term. It will depend on individual workplaces—the contextual factors. What is important in a sales environment may not be so in manufacturing. But it distills to this factor: has it become such an important and indispensable part of the employee’s work that it is a fundamental to include in the employment contract?

This type of constructive dismissal has not arrived. Yet. But the speed and depth of social media’s entry into the workplace is paving the road.

How to prepare for this?

Employers should assess their social media policies, codes of conduct and employment agreements.

Continuous vigilance and reassessments are also in order. This is also an opportunity to study how integrated social media’s use in the workplace is, and also—and this is especially paramount—to see how the company’s strategy is adapting to constant changes in social media platforms, such as Facebook’s constantly mutating privacy settings.

Such steps can help an employer guard against this, one of many distinct possibilities in the social media age.