Despite us living in a digital era, tribunal decisions on the use of social media by employees have, surprisingly, been relatively few and far between. Unfortunately, this has left employers in a precarious position of second guessing what exactly could be considered 'one tweet too many'.

What has derived from a recent decision involving Apple is that the starting point for any employer is a comprehensive social media policy.

Mr Crisp, who worked in an Apple store, received an induction upon the commencement of employment during which it was made clear that any commentary on Apple's products, or critical remarks about its brand, were strictly prohibited.

Despite Mr Crisp signing a statement confirming that he understood and accepted the company's policy, he subsequently posted derogatory comments about his job as well as Apple's products on his 'private' Facebook page. A colleague, who had access to his Facebook page noticed the comments and reported him to the company.

Mr Crisp, who was subsequently dismissed on the basis that his comments constituted misconduct, issued a claim for unfair dismissal. The ET rejected his claim, finding that Apple had a clear social media policy in place and that it had made it clear to Mr Crisp during the induction process that comments of the type he posted were strictly prohibited.

The importance of Apple's image, which the tribunal accepted was central to its business, was undoubtedly a key factor in the tribunal's decision, but the tribunal also observed the ability (or lack of) to prevent the information Mr Crisp had posted from being replicated elsewhere.

It has been held in an earlier ET decision, in the case of Gosden v Lifeline Project Limited, that the nature of a private e-mail sent by the claimant from his home computer to a friend, which contained sexist and racist views, constituted gross misconduct because he could not reasonably expect that its contents would remain private and not be forwarded. However, by contrast, in the case of Taylor v Somerfield, Mr Taylor was found to have been unfairly dismissed after posting on YouTube a video clip of colleagues fighting with plastic bags while at work. Despite the clip being available to the public, the fact it appeared to have been viewed only eight times was a determining factor.

Therefore, whilst limiting access to a social networking page does not necessarily ensure that an employee will be able to avail himself of privacy protection, equally the actual content and potential/actual readership of an email, post or tweet will be equally determinative issues.

Unfortunately, where there is no clear guidance or boundaries to work within, at least for the moment, these remain challenging times for employers and only emphasise the importance of having a comprehensive social media policy in place to define acceptable standards of behaviour.

If you need advice on your social media policy from a legal point of view, please contact Andrew Haywood from www.penningtons.co.uk who wrote this email.