Recent controversy arose after Gary Lineker criticised the Government’s immigration policy on Twitter causing the BBC to announce that he would step back from hosting Match of the Day until a clear position on his use of social media could be agreed.
The decision saw presenters and pundits boycotting BBC football programmes in solidarity and in support of freedom of speech, plunging the BBC’s sport service into chaos.
With the BBC forced to do a U-turn and Lineker now back on Match of the Day, we consider what wider lessons employers can learn from this incident.
Social Media Policy
Social media usage has grown exponentially and is now embedded into everyday life. This brings challenges to how employers should deal with social media incidents in the workplace.
A starting point for all employers is a social media policy which makes clear what constitutes appropriate use of social media and how a breach will be treated by the employer. To be effective, that policy - and subsequent updates - must be clearly communicated to the workforce.
A regular review of an employer’s social media policy is important, to ensure that it remains fit for purpose and is relevant in the evolving digital landscape. We saw the BBC’s dilemma “caused by the grey areas of the BBC’s social media guidance”, resulting in the announcement that the guidance would be reviewed.
What action can an employer take?
Whilst having a social media policy is important, the question arises on whether an employer is always vindicated in acting against individuals whose posts on social media are about bad practice in the workplace.
In ordinary circumstances, where the social media policy is breached, employers can take fair and reasonable action - which may include dismissal. However, employers should be cautious in circumstances where a worker has blown the whistle; or posted concerns of unlawful discrimination which may constitute a “protected act” which is protected under the Equality Act 2010 from detrimental treatment.
In these circumstances, a tension arises between taking action under the social media policy, and not treating an individual detrimentally because they have alleged unlawful discrimination. Defending an employment tribunal case for detrimental treatment may risk increased media attention and reputational damage.
Confidentiality clauses and reputational risk
Where an employer has settled an employee dispute, it will often wish to seek to close down the dispute through confidentiality provisions as part of the agreed settlement terms.
This area has been subject to increased public scrutiny in light of the #MeToo movement which has put the spotlight on the inappropriate use of confidentiality clauses in cases of alleged sexual misconduct. There is already a limitation on the use of confidentiality clauses as workers cannot be prevented from whistleblowing. In addition, the Equality and Human Rights Commission discourages the use of confidentiality clauses in its guidance on the use of confidentiality agreements in discrimination cases.
Whilst confidentiality obligations may be sufficient in most circumstances, employers are increasingly at risk of still-disgruntled (ex) employees making their dissatisfaction known in a social media post with its mass audience instantaneous reach, despite the existence of a confidentiality obligation. The Sandhu Metropolitan police case is just one high-profile example of an employer having suffered reputational damage: despite a confidentiality clause which signed Ms Sandhu up to non-disparaging and non-derogatory comments in the settlement of her race discrimination claim against the police, Ms Sandhu went on to write a book about her experience in the service.
Whilst the outcome in the Lineker case on the BBC’s social media guidelines was its review, employers are reminded that whilst a comprehensive social media policy which has been clearly communicated is a necessary foundation, this is only one side of the story. The salutary message for employers is that the horse may have bolted by the time an employee has made a social media posting, and employers need to think carefully about their actions and response (if any) to mitigate against reputational risk. A responsible employer will have measures in place to ensure that the workplace is a safe place to work, and that any issues or allegations are investigated appropriately and addressed.