Warning: Employers won't take online misconduct lying down

Woolworths have recently dismissed eight employees in Australia for 'planking' on top of the store's meat grinders, display shelves, trolleys and stacks of milk crates.

Woolworths has said the employees were dismissed for serious breaches of health and safety guidelines and not specifically for planking.

For those of you not in the know, 'planking' has become an international online craze. It involves lying face down for a photograph which is then uploaded to your Facebook account for others to see (as planking alone is not planking at all) and the more outrageous or creative the place you plank, the better. However, it is not always harmless fun; a young man from Brisbane tragically fell to his death this month while attempting to plank the seven-storey balcony of his apartment.

Planking is reminiscent of the 'lying down' game that took Facebook by storm a few years ago and resulted in a group of A&E doctors and nurses at the Great Western Hospital in Wiltshire being suspended, and later reinstated, for taking part whilst on duty for having, in that case, potentially breached health and safety and infection control regulations.

The issue of how to manage the multitude of problems social media and its use by employees creates in the workplace is not a new one for employers, who will now add to their wish lists the answer to whether or not planking alone could be grounds for dismissal.

Surprisingly, there is little guidance on how online misconduct will be approached by the tribunals as there are relatively few cases heard by the tribunals and courts on the matter. In the recent case of Preece v JD Weatherspoons plc ET/2104806/10, 2 February 2011 the dismissed employee had used Facebook while on duty to make disparaging comments about customers. The tribunal dismissed her claim for unfair dismissal. The fact that the employee was using Facebook while on duty was clearly relevant in this case but it is remains unclear whether or not the same comments made out of work – or, in the case of planking, whether workplace high jinks posted on Facebook out of hours – would have resulted in dismissal falling out with the range of reasonable responses available to a reasonable employer.

Employers will clearly want dismissal to be a reasonable response available to them because often their main concern is the company being brought into disrepute. Employers set great store by decisive and tough action to reduce reputational damage on the occasion in question and to avoid repeat performances by employees in the future. Employers must exercise caution however when justifying dismissal on the grounds of reputation damage alone.

In the unreported case of Taylor v Somerfield last year, the employee in question had posted a video on YouTube of himself and another colleague hitting each other with plastic bags in the warehouse. The tribunal found that there was no evidence that the employee had brought the company into disrepute as the company could only be identified by someone familiar with the colour pattern of the retail uniforms therefore making it unlikely that the video could cause any damage to reputation in the eyes of a reasonable viewer. Contrast this decision with that of Preece and it is clear that the circumstances in former case were far more likely to bring the company into disrepute. In the case of Taylor the tribunal was also influenced by the fact there were only eight hits on the video clip.

It appears then that employees uploading images of fooling around at work, without more, may not justify dismissal. However, if disparaging comments were posted with the image, or behaviour such as that suspected in the case of the suspended A&E doctors and nurses of compromising patient care were proven, it may produce a different result. Employers faced with online misconduct should therefore consider carefully whether there are grounds other than reputational damage that could be relied upon as appears to be the case with the dismissal of Woolworths' employees. For example, potential health and safety breaches, discrimination or breach of confidentiality may be easier to prove and rely upon than reputational damage which can be speculative and difficult to quantify.

Of course, there can be no substitute for clear policies that make it clear the standards that are expected both in and out of hours when using social media sites and the consequences that can flow from online misconduct. However, a breach of these policies, of themselves, will not necessarily be enough to justify dismissal in all the circumstances. It must always be borne in mind that employees' conduct outside the workplace may not be a sufficient ground for dismissal and requires some relation to the employee's employment.

Donna Reynolds is a solicitor at CCW LLP, business lawyers