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 in that scenario would 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 something and shares it with 100 of their followers.
Given the complexities of this issue, employers must navigate the challenges of social media use carefully, balancing the need to protect their reputation and ensure a respectful workplace with employees’ rights to free expression. A clear, well-communicated social media policy is essential, but so is a fair and consistent approach to enforcement. Understanding the nuances of what constitutes misconduct and the appropriate disciplinary measures can prevent minor issues from escalating into significant legal challenges.
Can employees be dismissed for breaking the rules?
Generally, employers should handle social media misconduct in the same way as any other misconduct. Misconduct often falls into two categories, namely 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), the key question 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.
However, 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 those that are merely unfavourable opinions.
If the material is not actually damaging to the employer, in that case, 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 an Employment 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
- any mitigating factors, such as the employee’s service record, cooperation during the disciplinary process, and feelings of remorse or guilt will be taken into account.
The importance of having a social media policy
If an organisation actively encourages its employees to use social media for work-related purposes, such as developing business contacts professional networking sites or blogging on behalf of the organisation, it is important to have a social media policy that explains the potential legal risks, sets clear guidelines for acceptable use, and outlines the consequences for violations.
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. 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. 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.
