Freedom of speech

Navigating the social media landscape

The perfect tool to push the boundaries of freedom of speech or the devil’s own work.

Not quite a newspaper and 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 comment, once out in the wild, is unstoppable.

Like it or not, social media is here to stay and because it’s so free and easy to abuse, businesses need to apply plenty of thought as to the controls they put in place to protect both the organisation and those they employ or work with.

The risks to a business

For Beverley Smith, an associate solicitor 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”. But 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 private and public worlds and created the risk for an employer of reputational damage. However, as Smith 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.

Then there’s 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 Smith 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, 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 harassment. Often the forum that such activity takes place in is not accessible or monitored by the employer, making it difficult to police”.

Worryingly, Smith tells that employers can be held liable for their employee’s 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. The tribunal ruled that the employer was liable because the claim, though untrue, was posted at work and during working hours.

Stevens cites Facebook and Twitter as the two most prominent platforms for airing personal views. He has witnessed first-hand, that employees not only have the ability to post controversial comments and opinions, and often do so, but such messages that 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 company which employed that individual, thus damage its reputation”.

He continues by recognising that businesses do use social media as a tool for marketing. However, because the line between personal and professional accounts can become indistinct “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 Smith 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”. Examples include posting images of identifiable work-in-progress without the customer’s permission.

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 Smith and Stevens highlight 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 Smith in 2015; and Gibbins v British Council in 2017.

Notably, Smith comments that social media cases have fallen considerably over the last five 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% 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, Smith thinks that “a policy will send a clear signal about the employer’s expectations over use of social media. At a minimum, it will make its employees aware that posting on social media, even in their spare time, may give grounds for disciplinary action, including dismissal”.

Stevens agrees, saying that such “a policy should set boundaries and define acceptable and unacceptable use and behaviour as this will prevent any ambiguity around social media use amongst employees.”

Training is the key to bringing a policy to life and should involve employees and HR to monitor and enforce the policy. To Smith 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 – it is a balancing act that employers must carefully undertake.

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 monitoring postings could be discriminatory – “proportionality and consistent treatment of employees is therefore important”.

He also recommends to employers not wanting
employees accessing social media accounts in the workplace, at all, that they apply technical measures to block access from company devices and its network. He says
that “firms should be aware that an employee can still access social media whilst in the workplace by just using their own devices”.

Sanctions for employees who break the rules

So, what can an employer do if an employee breaks the rules? In answer, Smith 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: “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: “If something is posted, the key question is ‘is it relevant to the job and reliable?’ and does the employee’s conduct goes to the heart of the employer/employee relationship or affects their ability to perform their role.”

Smith cautions, however, that “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

So, a clear and well-publicised social media policy will help an employer justify any disciplinary action they take. But how to write it?

At its simplest, Smith 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.”

Typical features that Stevens advocates including relate to how employees should portray themselves online; which social media platforms are deemed acceptable, especially in the workplace; whether personal social media accounts can be used during working hours; the difference in using company social media accounts and personal social media accounts; and guidance on how employee’s activity on personal social media accounts can be linked back and associated with the company.

One clear rule for Smith is to forbid derogatory, abusive or critical comments about the employer, its products or 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.

And because monitoring employees involves processing personal data, Smith warns that the Data Protection Act 2018 and UK GDPR applies. She points out that: “The ICO Employment Practices Code gives guidance on monitoring at work, the core principles of which are that worker’s 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.

Stevens takes a moment to remind that employers will likely have other policies that may have a bearing on a social media policy. As a result he advises that these other policies, say, disciplinary and grievance, bullying and harassment and data protection, are “all updated in line with any social media policy that is written”.

Can an employer overstep the mark?

Situations are rarely black and white and employers shouldn’t take a heavy-handed approach to enforcement. As Smith says, those that do are “unlikely to find favour in any subsequent employment tribunal where the employee merely ‘let off steam’ by posting an inoffensive comment on Facebook after a difficult day at work that did not mention the employer and was only read by a handful of people.”

Ultimately, she says that an Employment Tribunal will consider 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, 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.

In summary

Case law has demonstrated that a social media policy is central to protecting an organisation. 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.