Helen Scott is an Associate Solicitor at specialist employment law firm, Collingwood Legal. Helen Scott considers how employers can manage employee misconduct on social media platforms.
Social media increasingly forms part of our daily interactions, both inside and outside of work, with a reported 77.9% of the UK population using social media. Employers are increasingly faced with the challenge of managing matters when employees act inappropriately online. Social media incidents can be particularly difficult to address as they can give rise to arguments from the employee about matters being unrelated to work where they take place using employees’ own accounts outside of the workplace.
Conduct Inside or Outside of Work?
Where behaviour occurs on social media outside of work, what can an employer do? In general, conduct outside of work can in some circumstances justify disciplinary action including dismissal. The key question is whether such conduct potentially relates to the employment relationship? This could be because the nature of the conduct affects the employee’s work or relationships at work. For example, bullying posts between employees outside of work, has left one feeling unable to work with the other. Or the employment relationship may be sufficiently impacted by potential damage to the employer’s reputation in the case of derogatory posts about the employer.
If the conduct involves use of the employer’s technology or social media account, those cases are generally more straightforward and usually involve looking at whether the employee has misused work equipment by inappropriately using them for personal matters or posting inappropriate/misguided comments. Whether action is justified in these cases will generally depend upon the extent of the misuse and whether expectations have been clearly communicated in a policy.
Social Media Posts
If an employer is faced with an incident involving an employee posting to their own social media account using their own device, can that ever be misconduct relating to the employment relationship? There have been cases whereby disciplinary action, and even dismissal, has been found to be fair for these types of offences. The decisions very much depend on the facts of the case, but tend to involve an assessment of the following factors:-
The nature and content of the comments or images –
Comments or images posted which are highly offensive or discriminatory by the opinions expressed or way in which they are expressed may be more likely to warrant action. Further, posts which are derogatory or bullying towards other staff members are likely to impact upon employment relationships and may provide grounds for action.
Is the social media account linked to the employer in any way? – If the organisation is named as an employer or otherwise, or any imagery shown links to the organisation, there may be grounds to argue potential reputational damage.
Who has access to the post? – If the account is a closed private social media account which only a limited number of others can see and no other employee could access, then there may not be grounds for action. However, if the account is public or can be accessed by other employees, this may be a relevant factor supporting potential reputational damage or misconduct.
What is the extent or likelihood of damage to the business’s reputation? – Is there evidence of reputational damage or likely reputational damage? Employers should not however take a disproportionate view of the damage or potential damage to their reputation, just because a post which does not put them in the best light comes into the public arena.
What information has been given to employees about expectations regarding use of personal social media and reputation? – This is a key factor as if it has not been made clear in any policy or communication about acceptable conduct including social media then any disciplinary action is more likely to be considered unfair or unjustified. It can be possible to justify disciplinary action against employees, and in some cases dismiss for social media offences, but the particular facts and impact upon the organisation and employment relationship have to be carefully assessed before proceeding.
Action
To be in the best position to address this type of misconduct, it is essential to have clear policies and rules to set out the standards expected, what will be considered misconduct and (where appropriate) that such expectations and rules may extend to personal social media. Employers should have in place policies addressing such matters, ensuring they are up to date to address social media, to include: –
Social Media Policy;
Electronic Information and
Communications Systems Policy; Disciplinary Policy;
Anti-harassment and Bullying Policy; and Equal Opportunities Policy.
The outcome of cases involving allegations of misconduct on social media tend to turn on their particular facts, so specific advice on a case is recommended.
Collingwood Legal is a specialist employment law firm and we provide bespoke training and legal advice to organisations on all areas of employment law, including HR management skills, dealing with instances of employee misconduct and drafting appropriate policies.d