The perfect tool to push the boundaries of freedom of speech or the devil’s own work? Not quite a newspaper, yet more than correspondence, social media has the power to push a message or image around the world at the speed of light and help it replicate faster than the most toxic of viruses. Damaging comments, once out in the wild, are unstoppable.
The risks to a business
For Charlotte Ashton, an associate director at esphr, social media is a double-edged sword for employers. As she explains, “Businesses cannot afford not to have a social media presence to promote their brand.” However, she firmly thinks that without adequate protection to guard their business and reputation against abuse, the misuse of social media can pose a significant risk for employers, whether inside or outside the workplace.
Social media has blurred the private and public worlds and created the risk of reputational damage for an employer. However, as Ashton points out, employers shouldn’t react if a post is just disagreeable. She says this because “employment tribunals look closely at an employer’s justification for taking disciplinary action based on damage to its reputation or bringing it into disrepute”. It’s all about evidence rather than speculation.
Social media has blurred the private and public worlds and created the risk of reputational damage for an employer
Then, there are abusive and offensive comments made by an employee about another that may well constitute harassment and, as such, be actionable under the Equality Act 2010. As Ashton notes, “Harassment or bullying online can also lead to a claim under the Protection from Harassment Act 1997… there must have been more than one occasion of the harassment or bullying.”
Indeed, Mark Stevens, a senior associate at VWV LLP, thinks the same and remarks that while employees may connect with co-workers in an online world to enhance relationships, these online interactions can create the potential for inappropriate behaviour and online bullying and harassment. Often the forum that such activity takes place in is not accessible or monitored by the employer, making it difficult to police.
Worryingly, Ashton tells that employers can be held liable for their employees’ actions, as was the case for Carphone Warehouse, which was held to be vicariously liable when an employee’s colleagues stole his phone and posted that he was gay on Facebook. He was not gay, but that was irrelevant as they made the posting at work and during working hours.
Stevens has seen the same and cites Facebook and X (formerly Twitter) as two well-known platforms where users can express their personal views for others to see. He has witnessed first-hand that employees not only have the ability to post controversial comments and opinions and often do so, but also that such messages can very quickly spread. Worse, he says that where inappropriate, controversial or offensive comments or viewpoints are shared, members of the public could very easily associate those comments or points of view with the organisation which employed that individual, thus damaging its reputation.
He continues by saying that the line between personal and professional accounts can become indistinct, so employers should ensure that employees with responsibility for running a business social media account use it in a professional way, and not as though it is their own personal account.
The line between personal and professional accounts can become indistinct, so employers should ensure that employees with responsibility for running a business social media account use it in a professional way, and not as though it is their own personal account
Then, there are potential breaches of confidentiality. Here, Ashton says that apart from express restrictions, employees owe implied contractual duties of fidelity and confidentiality to their employer. Posts on a public forum about the employer’s business can breach those duties.
And let’s not forget the risk to productivity with staff spending too long on social media sites.
Case law
It’s interesting that both Ashton and Stevens highlight that there’s a fair amount of case law around the subject – Whitham v Club 24 Limited t/a Ventura in 2010, Trasler v B&Q in 2012, British Waterways Board v Ashton in 2015 and Gibbins v British Council in 2017.
Notably, Ashton comments that social media cases have fallen considerably in recent years, which may be testimony to the measures employers are putting in place to guard against its misuse. However, she says that those cases that have come before the tribunals have resulted in conflicting decisions, reflecting how fact-specific these types of cases are.
In essence, case law has shown that dismissals in situations where the reputational damage is minimal to non-existent are invariably unfair. However, more damaging allegations can see a dismissal found to be fair. And in one case a dismissal was found to be fair even though the post stayed online for seven months without reputational harm. That said, the award to the employee was cut by 60 percent because of his actions that led to the case being brought.
Employee private accounts
It’s unreasonable for employers to ban staff from having private social media accounts – they’re part of life. However, employers need a social media policy to minimise risks and strengthen the employer’s position.
In fact, Ashton thinks that a policy will send a clear signal about the employer’s expectations regarding the use of social media. At a minimum, it will make employees aware that posting on social media or personal blogs, even in their spare time, may give grounds for disciplinary action, including dismissal.
At a minimum, it will make employees aware that posting on social media or personal blogs, even in their spare time, may give grounds for disciplinary action, including dismissal
Training is the key to bringing a policy to life and should involve employees and HR to monitor and enforce the policy. To Ashton, this means a consistent approach to treating harassment and bullying online with the response to harassment and bullying in other contexts.
Where employees are monitored in the workplace, this should not go further than necessary and employers should avoid implementing restrictions which are intrusive or unreasonable.
On this, Stevens warns that human rights legislation provides individuals with the right to respect for private and family life and correspondence, and this could be contravened by monitoring. He suggests that employees could argue that scrutinising their social postings could be discriminatory – proportionality and consistent treatment of employees is, therefore, important.
Sanctions for employees who break the rules
So, what can an employer do if an employee breaks the rules? In answer, Ashton says to treat it as any other case of misconduct. She sees cases falling into two categories – inappropriate behaviour by an employee that is exposed through social media, or derogatory comments about the employee’s workplace posted on social media.
She says that where work-related misconduct comes to light via social media, the employer may legitimately take disciplinary action against an employee, including dismissal – even where the conduct occurs outside of work. She adds that if something is posted, the key questions are “Is it relevant to the job and reliable?” and “Does the employee’s conduct go to the heart of the employer/employee relationship or affect their ability to perform their role?”
Ashton cautions, however, that in terms of reputational damage, employers will rarely, if ever, have grounds to take action against employees for activity on the employee’s own equipment outside of working hours which did not risk or cause damage to the employer’s reputation.
Writing a social media policy
A clear and well-publicised social media policy will help an employer justify any disciplinary action they take.
At its simplest, Ashton recommends that a policy should establish clear written rules on the use of social media in the workplace, explain clearly what type of private social media use is covered by the policy, warn staff that breaches of the policy could lead to disciplinary action including dismissal and refer to any other relevant policies such as disciplinary, bullying and harassment and IT/communication policies.
A policy should establish clear written rules on the use of social media in the workplace, explain clearly what type of private social media use is covered by the policy
Typical features that Stevens supports are how employees should portray themselves online; which social media accounts are deemed acceptable in the workplace; whether personal social media accounts can be used during working hours; the difference in using business social media accounts and personal social media accounts; and guidance on how employees’ activity on personal social media accounts can be linked back and associated with the employer.
One clear rule for Ashton is to forbid derogatory, abusive or critical comments about the employer, its products and services, or its clients. It is also useful to warn employees that comments made on social media should be treated as public rather than private.
When it comes to monitoring, the policy should detail rules around accessing social media sites at work and information about the monitoring the employer may undertake and the use of that information.
Because monitoring employees involves processing personal data, Ashton warns that the Data Protection Act 2018 and UK GDPR apply. She points out that the ICO Employment Practices Code gives guidance on monitoring at work, the core principles of which are that workers’ private lives extend to the workplace and employees have an expectation of privacy, so if monitoring is undertaken, an impact assessment should be carried out first, and employees should be notified about the monitoring.
As for enforcing the policy, unless an employee is aware of the consequences of inappropriate social media postings, any dismissal will likely be unfair even though some might argue today that crossing the line is more obvious than it once was.
In summary
Case law has demonstrated that a social media policy is central to protecting an employer. However, policies, while useful, shouldn’t seek to be too restrictive. Employers should not be overly concerned about the odd bit of gossip or frustration that gets aired on an employee’s social media account; those with draconian provisions in place may find staff looking for work elsewhere.
