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Social media in the workplace | Navigating the legal landscape
Written on 5 June 2024
Social media has transformed the way we communicate, allowing individuals to share their thoughts and opinions with a vast audience, regardless of geographical boundaries. However, given the ease at which a private comment or post can be shared with the possibility of it going viral, the damage can be significant and happen swiftly.
Social media is, in some respects, a double-edged sword for employers. Having a social media presence is essential for promoting your brand; without it, you risk being left behind by competitors. Unfortunately, however, organisations don’t always give enough thought to how social media should be used and controlled, whether that relates to employees posting on their own accounts outside of the workplace or employees using corporate accounts as part of their day-to-day role.
Without adequate protection to guard the organisation and its reputation against abuse, the misuse of social media can pose a significant risk, whether inside or outside the workplace.
The risks to the organisation when employees use social media
Reputational damage
One of the most significant risks to businesses is reputational damage. A single post by an employee can be shared quickly and widely, potentially causing harm to an organisation’s reputation.
Employers and HR professionals need to be careful when taking disciplinary action based on social media postings and should only do so if the posting directly impacts the employer’s business, rather than simply because the employer disapproves of the content. Employment Tribunals will look closely at an employer’s justification for taking disciplinary action based on damage to its reputation or bringing it into disrepute. They will expect substantive evidence of this rather than mere speculation
Harassment and cyber bullying
Another risk associated with social media is harassment and cyberbullying. Abusive and offensive comments made by one employee about another on social media may constitute harassment and, as such, may be actionable under the Equality Act 2010 if related to a protected characteristic and made during that person’s employment.
Harassment or bullying online can also lead to a claim under the Protection from Harassment Act 1997 where there is no requirement for the conduct to be linked to a protected characteristic (although there must have been more than one occasion of the harassment or bullying). Employers can be held vicariously liable for their employee’s actions if they occur at work and during working hours. However, harassment and cyberbullying often occur outside the workplace and on an employee’s own equipment, and therefore employers and HR professionals should make it clear in their bullying and harassment policies that online harassment will be treated as a disciplinary issue in the same way as harassment in person.
Breaches of confidentiality
Open access to social media, whether at home or work, also raises concerns about potential breaches of confidentiality. Employees owe implied contractual duties of fidelity and confidentiality to their employer, and any information an employee posts on a public forum about their employer’s business can give rise to a breach of those duties. For example, a disgruntled employee revealing their employer’s trade secrets in a blog or post could be a disciplinary issue that could result in dismissal.
Impact on productivity
There is a risk of a downturn in productivity when employees spend too much time on social media sites. This risk can impact both the employee’s performance and the organisation’s bottom line.
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Private vs corporate social media accounts
There has effectively been a blurring of the private and public worlds that never existed before social media. Where previously, an employee would vent their frustration down the pub after a ‘bad day’, nowadays it is so easy for an employee to fire off a tweet or post something which would otherwise be easily forgotten.
Unfortunately, with social media, not only does the post remain but by the time the employee tries to remove it, it may have already been shared. It is fair to say that social media carries a mistaken expectation of privacy. It’s not private if an employee posts a comment and shares it with 100 of their followers.
If an organisation actively encourages its employees to use social media for work-related purposes, such as utilising professional networking sites to generate business or blogging on behalf of the organisation, it is important that the organisation’s social media policy explains the potential legal risks.
The policy should clearly state that employees must not disclose confidential information or infringe on the copyright or intellectual property rights of others, such as reposting user-generated content without permission. In cases where employees are authorised to blog or tweet on behalf of the organisation, it may be wise for the organisation to restrict this activity to a select few individuals and include a disclaimer indicating that the expressed views do not necessarily represent the opinions of the employer.
Balancing business interests and employee rights
While organisations clearly cannot prevent people from posting and using social media as it is such an integral part of daily life, having a clear social media policy will at least minimise risks and strengthen the employer’s position in case of misuse.
A policy will set clear expectations regarding employee use of social media. At a minimum, it will make its employees aware that posting on social media or personal blogs, even in their spare time, may give grounds for disciplinary action, including dismissal in certain circumstances.
To bring the policy to life, employers should consider social media training for employees and managers. Consideration should also be given to training for HR staff concerning appropriate and effective monitoring and enforcement of the policy (under employees’ privacy rights). Organisations should ensure a consistent approach to treating harassment and bullying online with the response to harassment and bullying in other contexts. It is no less severe simply because it takes place online.
Can staff be dismissed for breaking the rules?
Generally, employers should handle social media misconduct in the same way as any other misconduct. Social media misconduct often falls into two categories: inappropriate behaviour exposed through social media, and derogatory comments about the workplace posted on social media.
Where work-related misconduct comes to light via social media, employers may legitimately take disciplinary action against an employee, including dismissal, even if the conduct happens outside of work. If something is posted (whether the employer is informed or reacts to its own findings), key questions to ask include:
- Is it relevant to the job?
- Is it reliable?
- Does the conduct affect the employer/employee relationship or the employee’s ability to perform their role?
If so, further investigation should follow.
Conversely, employers usually have limited grounds to take action against employees for activity on their own equipment outside of working hours that did not cause reputational damage to the employer.
Employees who violate the employer’s bullying and harassment policy may be subject to disciplinary action, including dismissal, similar to harassment or bullying in person.
What happens if an employer oversteps the mark?
Employers should exercise caution in taking a heavy-handed approach towards social media posts by their employees, as this is unlikely to find favour in any subsequent Employment Tribunal if the posts do not defame the employer or breach confidentiality, and if they are only read by a limited audience.
Employers must therefore differentiate between material that damages the employer’s reputation, breaches confidence or disparages a fellow employee, and that which is merely unfavourable opinions.
If the material is not actually damaging to the employer, it is unlikely that the relationship of trust and confidence will be so seriously undermined as to permit the employer to dismiss. Nonetheless, employers may be entitled to treat posts that bring the business into disrepute as misconduct, in which case disciplinary action may be appropriate.
In determining whether dismissal is a legitimate course of action to take and judged to be fair by a Tribunal, factors such as:
- the nature of the employee’s job;
- their seniority;
- the seriousness of the alleged misconduct;
- the nature of the employer’s organisation;
- the terms of the employer’s social media policy;
- the disclosure of any confidential information;
- the risk of reputational damage to the employer (including the number of people likely to have seen the post);
- the likely impact on the employee’s job; and
- any mitigating factors, such as the employee’s service record, cooperation during the disciplinary process and contrition
will be taken into account.
Implementing social media policies
This area of law is constantly evolving, and case law to date has demonstrated that employers with social media policies in place will be on firmer ground when disciplining employees for online comments or conduct than those who do not. However, employers should be wary about drawing up policies that are too restrictive, as this may negatively impact employee morale and retention.
Ultimately, employers should not be overly concerned about occasional negative comments or frustrations expressed by employees on social media, as overly controlling policies may lead employees to seek employment elsewhere.
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Need support navigating the legalities of social media and the workplace?
If you need help implementing effective social media policies that protect your business interests while respecting the rights of your employees, it’s essential to seek professional guidance.
WorkNest’s Employment Law experts can help you to draft policies that strike the right balance and ensure that your employees are aware of the rules and expectations regarding their online conduct. We can also work with you to manage social media related issues appropriately should they arise.
Contact us today to learn how we can help you and protect your business. Call 0345 226 8393 or request a free consultation using the button below.
