Social media has transformed how we communicate, enabling people to share their thoughts and opinions with a vast audience, regardless of geographical boundaries. However, when private comments or social posts go viral, the damage can be significant and swift.

For employers, social media can be a double-edged sword: essential for promoting the brand and standing out from competition, but potentially risky if not adequately controlled – whether that relates to employees posting on their own social media accounts outside of the workplace, or when using corporate accounts as part of their day-to-day role.

Risks to the organisation 

Reputational damage

A single post by an employee can be shared quickly and widely, potentially causing harm to an organisation’s reputation. However, case law has cautioned employers against overreacting in these scenarios. Therefore, when considering disciplinary action, it is important to assess whether there has been a genuine risk of reputational damage, if there is concrete proof of this damage, and if there is a sufficient work-related link to justify the action. In the event of a claim, Employment Tribunals will expect substantive evidence of this rather than mere speculation.

Harassment and cyberbullying

Abusive comments made by one employee about another on social media may constitute harassment actionable under the Equality Act 2010 if related to a protected characteristic, and was done during that person’s employment. Additionally, harassment or bullying online can lead to a claim under the Protection from Harassment Act 1997, even without a protected characteristic. Employers can be held vicariously liable if the actions occur at work. Make sure that all staff are trained up in anti-harassment policies as this gives you the best defence if you end up facing a claim.

Vicarious liability

Actions that occur outside of work could be the responsibility of the employer if there is an underlying unlawful act (such as harassment, bullying, violence or discrimination) which is considered to have occurred ‘in the course of employment’. Therefore, it is crucial to have a clear policy that defines what constitutes bullying and harassment, and to reference this in your social media policy. Make sure to follow this policy when taking action, as it will help justify the outcome. Policies should clearly state that online harassment will be treated as a disciplinary issue, ensuring consistency and clarity in addressing such behaviour.

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 trade secrets could lead to disciplinary action, including dismissal.

What can employers do to minimise risks?

Implement a social media policy

Whilst you clearly cannot prevent people from posting and using social media as it is such an integral part of daily life, at least having a social media policy will minimise risks and strengthen the employer’s position in case of misuse. The policy should not only govern social media use but also encompass guidelines for computer use, internet use, and email etiquette.

Within your social media policy, it’s important to clearly outline both expectations and consequences. In other words, you should outline what constitutes appropriate and acceptable use of social media platforms and the consequences should an employee breach these parameters. Note that any guidelines imposed on employees’ personal social media use should strike a balance between the organisation’s interests and employees’ right to individual expression and privacy. Download our free social media policy template here.

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.

Provide training

To ensure effective policy implementation and prevent issues, it’s essential to continuously educate employees about your social media policy, placing a strong emphasis on responsible online behaviour and the potential repercussions of inappropriate posts. Encourage employees to exercise caution and think twice before sharing any content related to their work or colleagues. Our Social Media in Employment training course, which can be delivered to your team on site or virtually, will help those involved in people management exercise good judgment when it comes to use of social media and understand the circumstances in which disciplinary action may be warranted.

Handle issues proactively

If you do take issue with what an employee posts on their personal social media account, address it proactively and privately. Initiate a constructive conversation with the employee to understand their perspective and express your concerns. Encourage open communication and seek resolution rather than resorting to immediate disciplinary action. This approach can help prevent minor issues from escalating into major disputes and maintain a positive employer-employee relationship.