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Social Media and Business – When Words Become Woes

Employment solicitor Martha Craven from HLN Expert in Residence Samuel Phillips explains how and when employers can discipline social media posts

Written by Samuel Phillips Law
Published 01.05.2021

In Partnership with Samuel Phillips Law

A news story reported by The Chronicle recently grabbed our attention. A Newcastle beer garden barred a woman for her ‘vile’ Instagram post about her fellow patrons. And it got us thinking.

We all know – unfortunately, a little too well, by now – the damaging and sometimes tragic repercussions that can follow online obscenities in their wake. The atrocities some keyboard warriors are capable of behind the comfort of anonymity has been brought to life by some high-profile personalities in recent years: trolling (Jesy Nelson); racism (Marcus Rashford); death threats (Carole Baskin).

But what happens when this online discrimination impacts a business? Where does – and where should – a company stand when it’s their patrons (in the case of this most recent story), or their employees who are the ones behind the posts?

It’s anything but straightforward. If an offence occurs outside of working hours, or outside of working parameters, is it still punishable by an employer? Where is the line where ‘work’ and home’ meet? Undoubtedly it has become more blurred than ever during the pandemic. And when – exactly – does freedom of speech become a hate crime? Could you, as an employer, get into more trouble than your employee if you try and reprimand them? But is it morally right not to address their behaviour at all?

Clearly this wasn’t just a consideration for us alone. To explore the issue properly, we enlisted some expert help. Enter: Martha Craven, Solicitor in Employment at Newcastle-based law firm, Samuel Phillips.

 

 

HOW MUCH TROUBLE CAN I GET IN FOR PERSONAL SOCIAL MEDIA POSTS THAT MAY GO AGAINST MY EMPLOYER’S VALUES?

‘Ultimately, you can be disciplined or even dismissed for comments you make on social media,’ explains Martha. ‘It all comes down to what sanction (if any) is reasonable in the circumstances. This will depend on a number of factors, such as:

  • the specific content of the post
  • whether there is a clear connection to the employer
  • your social media privacy settings
  • whether the post was made during work hours and/or utilising the employer’s IT equipment
  • how senior you are and/or whether you have managerial responsibility
  • previous disciplinary record and length of service
  • whether the terms of any social media policy and/or employment contract have been breached

‘The crucial issue is often whether or not the post might damage the employer’s reputation or the reputation of a customer or colleague. If the answer is yes, then it is much more likely that your employer will seek to discipline (or dismiss) you. It is also more likely that a tribunal would find that doing so was fair and reasonable.

‘You should also be aware that you may, inadvertently, fall foul of confidentiality restrictions in your employment contract if you share confidential material. This may also lead to disciplinary sanctions.’

WHAT STEPS SHOULD I TAKE AS AN EMPLOYER IF MY EMPLOYEE IS POSTING INAPPROPRIATE MATERIAL ON SOCIAL MEDIA?

‘It’s important to strike the correct balance between protecting your business interests and avoiding interfering with an employee’s freedom to engage with social media,’ Martha says.

You must still ensure that you adhere to the relevant rules about data protection and lawful processing of personal data. 

‘You should be clear to your employees about whether you intend to monitor their social media while at work. You should also clearly set out the nature and extent of such monitoring, as well as the basis for such monitoring.

‘You may also wish to conduct a data protection risk assessment, before undertaking any monitoring of your employees’ social media while at work.

‘You should not monitor an employee’s social media without a legitimate reason and without notifying the employee first, otherwise you risk breaching data protection legislation. Covert monitoring should be used only in exceptional circumstances.’

Get your house in order: Social Media Policy, contracts and training

‘Having a robust and effective social media policy can actually help prevent issues arising, as it sets out what you expect from your staff regarding social media and what you regard as unacceptable.

‘Your social media policy is also your first line of defence if an employee posts inappropriate material on their social media platforms.

‘Your social media policy should make the following clear:

  • Social media should not be used in a way which breaches other policies and procedures (such as your Equality & Diversity policy)
  • Employees should avoid making any communications that could damage the company’s business interests or reputation (or that of its customers, clients or other colleagues) – even where such comments are made outside of working hours
  • Employees should not use social media to bully, harass or unlawfully discriminate against any other staff member or third party
  • Outline the potential disciplinary sanctions where an employee fails to adhere to the social media policy

‘Similarly, including appropriate clauses in the contract of employment (such as confidentiality clauses) may also provide a further line of defence.

‘You should ensure that the social media policy is widely communicated to all employees as part of their induction. You should also ensure that there’s training to embed the social media policy.

‘If you’re particularly concerned about your company’s core values and reputation, include these values in the social media policy and training sessions. Make it clear what is acceptable, and what is not.’

 

Gather information about the relevant social media post

‘Firstly, you should make a note of how you became aware of the social media post. Usually, this is due to a complaint made about the post by another employee or a customer. This will help add context and will also help explain the need to investigate the employee’s social media post in more detail.

‘Bear in mind that if you’re trawling through an employee’s social media on a regular basis without a legitimate reason, you seriously risk falling foul of data protection legislation.

‘You should also note the following:

  • how many other people have “liked” or “shared” the post
  • the privacy settings of the employee and whether their posts are public, accessible to friends only, or accessible to friends of friends. Check whether the post can be shared
  • how many friends/followers the employee has

 

Ask the employee to remove the social media post and consider any disciplinary action carefully

‘Once you’ve gathered the right information, you can then contact the employee and ask them the take the relevant post down.

‘It can be easy to panic about your company’s reputation in the circumstances. However, you should remember to follow the correct disciplinary procedures. Crucially, you should still give the employee a chance to explain their actions before any disciplinary action is taken. Any disciplinary action should be proportionate.

‘If you have a social media policy in place, then this can be a very useful reference point during any disciplinary process.’

 

 

 

LEGALLY, WHAT SHOULD I KNOW ABOUT SOCIAL MEDIA? (AS AN EMPLOYER AND AS AN EMPLOYEE)

‘This is a tricky area for both employees and employers,’ reasons Martha. ‘This is because the question of whether social media posts can constitute misconduct or gross misconduct and what disciplinary sanction (if any) is appropriate depends upon the specific circumstances in each case.’

Some key points for employers:

  • Be aware of the data protection implications of monitoring your employees’ social media
  • It’s more likely to reasonably discipline employees who make comments which are connected to the workplaceand which risk damaging the company’s reputation.
  • Having a social media policy in place is crucial, and this should be supported with training.
  • Do not panic and avoid the temptation to rush to conclusions. Remember to investigate and follow proper disciplinary procedures.

 

Some key points for employees:

  • Be aware of your privacy settings – check who can access your posts (including who can re-share posts). You should also check who can see your comments or items you have “liked” or “favourited”.
  • Remember that setting your account to private may not be enough, as content can be screenshotted and re-shared. It only takes one colleague, customer or a friend-of-a-friend to take a screenshot of the content and share it with your employer.
  • Avoid posting any work-related material on your social media if you can – particularly if it is critical or negative of your employer, customers or colleagues.

To find out more about the legalities of social media and business, or if you’re looking for initial advice in the strictest of confidence, visit Samuel Phillips’ website or Facebook page. 

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