Focus On? Social Media

In the wake of the dispute between Gary Lineker and the BBC, regarding his comments on the Illegal Migration Bill conflicting with the BBC guidelines on impartiality, in this issue we consider the impact of social media on employers and the relevant considerations required when disciplining an employee.

Social media is a frequent source of issue for employers who are unable to control the actions of their employees on the internet. In the modern age, employees will often widely publicise both their personal and working lives on social media to a growing audience. This is ever more present with the younger generation more active on social media having integrated it into their daily life. This provides a significantly wide scope for potential issues to arise with employees damaging the reputation of the company, leaking confidential information or offending fellow employees or even the wider public.

Why Should Employers be Concerned About Social Media Use?

It is a foundational concept that an employer can be held liable for the acts of an employee which occur during the course of employment, this principle is defined as vicarious liability. To this end, you would likely consider that an employee's use of a private social media account outside of the workplace and outside of working hours would not be considered to be within the course of employment. However, courts and tribunals have increasingly applied a wide test construing acts of employees within the course of employment despite the offending not taking place at work, withing working hours or further to any employer instruction.

Regardless of whether a company faces a claim from a disgruntled employee or a member of the public, tweets and videos on social media can gain public traction very quickly and with great ease. In this instance, employers can face substantial pressure to act on an online issue to maintain their reputation. The potential reputational damage to a company following adverse publicity can be difficult to quantify. Employers will have to balance competing interests in protecting their own reputation alongside the employment and human rights of the concerned employee.

In particular, employers need to be mindful of their employees’ human rights to privacy  and freedom of expression. An employment tribunal has held that employers have more ability to restrict employee's freedom of expression at work or in a work related context as opposed to content publicised to a private audience. However, employers should remain concerned where employees are publishing offensive tweets that can be read by colleagues or business contacts (Game Retail Ltd v Laws). Despite a Facebook page only being open to 'friends' the tribunal will not consider this as private where the content can be forwarded on to further people (Teggart v TeleTech UK Limited NIIT, Crisp v Apple Retail (UK) Ltd).

In both TeleTech and Crisp the employer had a clear policy in place on the implications of social media use, which was used as the basis to justify dismissal on the grounds of gross misconduct for comments made outside of work. Where employers have failed to implement policies and procedures in respect of social media, they will likely encounter a greater difficulty in taking disciplinary action against an employee.

How Easily Can an Employee be Dismissed?

The Employment Appeal Tribunal has refused to set down clear guidelines to employers when considering whether an employee's conduct on social media will be treated as within the course of employment or when an employer’s decision to dismiss is reasonable in determining an unfair dismissal claim.

In particular, there is no clear dividing line between conduct that is within the course of employment and conduct which is not. Instead, each case will depend on its own particular facts. Relevant factors might include whether the content was posted outside or within work, and if done outside work whether there is a sufficient connection with the work so as to render it within the course of employment.

Posts with a connection to work

Where the employee is posting from a work account or posting comments concerning colleagues the connection to work will be more obvious and the disciplinary action justified with greater ease, even if the comments have been made outside of work. Employment Tribunals have found dismissals to be fair in instances where an employee has forwarded offensive emails containing anti-Islamic content between home computers to other colleagues (Gosden v Lifeline Project Ltd) and where aggressive comments containing expletives have been directed at managers despite the posts being made two years prior to the dismissal (British Waterways Board v Smith, Ward v Marston's Plc).

If the comment has been made using company IT equipment, the company policies should be checked to determine if there has been a clear breach by the employee for misusing company equipment/property.

Posts unrelated to work

Disciplinary action for posts made outside work and with no connection to work provide greater difficulties for employers when taking disciplinary action, here the seriousness of the comment will be central to the fairness of the dismissal. In Webb v London Underground Ltd the employee made offensive remarks in respect of the death of George Floyd and failed to remove the posts when requested. In this case, the dismissal for gross misconduct was considered fair.

Employers should remain mindful to properly conduct investigations into the comments and to ensure that the appropriate procedure for the dismissal has been followed to prevent the dismissal from being procedurally unfair.

Interestingly, the High Court ruled that a dismissal was unfair where an employee expressed personal views about gay marriage on Facebook to an audience including work colleagues and having identified himself as a manager of the company (Smith v Trafford Housing Trust). In reaching its decision, the High Court considered that the post was made outside work and that the comments did not undermine the dignity of his colleagues. The court provided weighted consideration of the employee's freedom of expression in reaching its decision that the dismissal was unfair.

Practical Steps for Employers

As is visible, there is no hard and fast rule for when a dismissal will be considered fair. In each case the nature and seriousness of the issue, any previous warnings, the consequential damage to customer relationships and company reputation and the existence of training and policies will be considered.

There are several methods employers can introduce into the workplace to protect themselves and reduce the risk of a successful unfair dismissal claim. Save for implementing a ban on accessing websites such as Facebook and Twitter during work hours, this would likely be rejected by employees and reduce morale, more effective methods will remove the perception that social media activity is private with posts being made subject to potential consequences.

It is vital to re-affirm the content of social media policies and guidelines, keeping both under continual review and providing associated training on the appropriate use of social media in line with the company's harassment, bullying and diversity training and policies.

Social media policy

A social media policy is essential for employers to set out clear parameters on the permitted use of social media by employees. The outcome of tribunal decisions has been impacted by whether a clear policy has been put in place that expressly prohibits the making of offensive remarks on a private social media account. The policy should:

• Set out clear expectations on the use of social media within working hours;
• Be in line with the discrimination, harassment and bullying polices of the company;
• Prevent publication of content regarding the company, employees or business contacts to preserve relationships and reputation;
• Give the employer the right to demand that employees remove or edit potentially damaging or offensive content; and
• Explain the potential consequences of disciplinary action for breaching the policy and failing to remove the concerned content when requested.

Without a policy in existence, it becomes substantially difficult for an employer to show that they have informed employees of the restrictions in place and that the employee is aware of the potential consequences and impacts posts can have on the company. This will be a key consideration in determining the fairness of the dismissal.

Social media guidelines

Guidelines set out the considerations employees should have in respect of the content they post online highlighting the risk to the company of facing liability or adverse publicity should they fail to follow the guidelines. The guidelines may include:

• Advising employees to be respectful and avoid displaying argumentative behaviour;
• Complying with the policies of the company to ensure that the content posted is appropriate; and
• To avoid commenting on the business, its performance or its business contacts.

Social Media as an Asset

Despite the risk of employees publicising offensive and harmful opinions, social media provides companies with a platform to elevate their business presence. Ignoring or restricting social media may be detrimental to the success of a business in the modern world. However, the rise of social media, particularly the use of 'LinkedIn', has created new issues for employers to protect confidential information and key business contacts.

Clause 3 of the LinkedIn User Agreement specifies that the content of the account is owned by the user, not the employer. This will remain the case even if the user is acting on the employer's instruction. During the course of employment employers will be protected by the employee's duty of good faith preventing the use of its LinkedIn business connections for private gain, however these duties will not carry on post-employment.

This has important considerations in relation to employees who exit the business whilst possessing valuable LinkedIn accounts with key client connections. Restrictive covenants are a common sight in employment contracts to prevent former employees from poaching staff, soliciting clients and using confidential information, and these restrictions can be extended to the use of LinkedIn accounts. The High Court has held that a former employer can exert some control over an employee's LinkedIn account after termination in order to protect its business interests (Whitmar Publications Ltd v Gamage), however the employer's control will need to be set out in a contractual provision or within a social media policy detailing what the employee should do with the information post-employment.

Consideration is needed as to how the LinkedIn contacts have been obtained. If the employee has built their connections through their own endeavours as opposed to unlawfully obtaining the contacts from the business for the sole purpose of entering into competition, their contacts will be considered their own property with the employer facing a significant challenge to require their deletion.

There is no definitive rule that a restrictive covenant over LinkedIn use will be enforceable. As is standard in restrictive covenants, their enforceability will depend on their context and proportionality. As to how far the restrictions can go, for example requiring the deletion of the entirety of their LinkedIn connections, this is yet to be seen with minimal case law in the area.

In any event a clearly drafted social media policy and contractual wording will help both parties understand their obligations post-employment and provide employers with a greater right of enforcement than what would exist without such provision.

Should you require further information or advice about this topic, please contact a member of the Employment Team on 0345 111 5050 or email us at law@higgsllp.co.uk