I was struck by the recent High Court case widely reported in the press where Adrian Smith won his battle with his employer, Trafford Housing Trust, for breach of contract. The case was odd for a number of reasons, not least that he chose to battle it out at the High Court as opposed to pursuing the Employment Tribunal route. However, most interesting to me was that the issue at the heart of the case involved a social media posting.
Mr Smith had posted a comment on his Facebook page, relating to a BBC news story about the likelihood that the Church would allow same sex marriages. Mr Smith expressed disagreement with this position, posting that it was ‘an equality too far’ and then responding to a colleague who asked him to explain himself. The views he expressed were on his own Facebook page, not visible to the general public, posted in his own time and were by no means extreme. Despite this, THT claimed he had broken its code of conduct by expressing religious or political views which might upset co-workers. THT demoted him and cut Mr Smith’s pay.
So how does this relate to mediation? For me it all comes down to taking a common sense, flexible approach in a world where the ‘old rules’ are being sorely tested. Had Mr Smith made the comments he did whilst chatting to a colleague over lunch in his company canteen I suspect the situation would never have escalated in the way it did. The company would likely be familiar with handling this kind of scenario. But as the comments were on the internet, suddenly the company is dealing with new territory, and in such situations the ‘safe’ option is to revert to the supposed haven of policy and procedure – hence disciplinary action. Clearly the company perceived the risk of this approach as lower than the risk that someone might pick up Mr Smith’s posting and use it against the company.
I do think mediation could have been considered in this situation. One of the major benefits of mediation compared to formal HR processes is that it can enable participants to understand the underlying concerns and interests of the other. Certainly THT was justified in wanting to ensure its corporate reputation was not damaged by an employee’s internet comment, just as Mr Smith was justified in feeling he could express an opinion which had nothing to do with his work. Mediation might have helped Mr Smith understand why THT were so concerned about the comment, and likewise THT may have realised that Mr Smith’s comments were not malicious. As the High Court later found, no reasonable reader of the comments ‘could rationally conclude that his two postings about gay marriage ... were made in any relevant sense on the trust’s behalf’.
The social media world is a new environment and one which is testing the boundaries of conventional control frameworks. The internet puts enormous power into the hands of individuals who may be completely unaware of how to manage that power responsibly. Consequently great damage can be caused and until the control frameworks can adjust to this new world a level of tolerance has to be employed. This is where mediation can play a role. In the same way that restorative justice is used to help an offender understand the real harm he has caused his victim, mediation could be used to help those involved fully appreciate the impact of their actions. For instance, the person who sent an abusive tweet to diver Tom Daley was arrested and issued with a harassment warning. Would it not have been more powerful to sit the tweeter down in front of Daley, get him to explain why he did it and to hear from Daley how upset he was – I suspect this would have been a quicker, longer lasting and less resource intensive solution (but perhaps not so newsworthy!).
Clearly formal disciplinary processes are needed and in the workplace best practice is that organisations put a social media policy in place to try to clarify boundaries. If policy is breached then disciplinary processes can be applied. However, this is rarely black and white and in the new world of social media the ‘grey areas’ are potentially substantial. As such, common sense needs to be applied. A mediation type approach of discussing issues, explaining underlying interests and jointly agreeing a practical way forward is ideally suited to tackling the grey areas. So when social media is involved, remember the case of Adrian Smith and Trafford Housing Trust, and maybe think about a bit of ‘Social Mediation’.
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