Social media sites, such as LinkedIn, Twitter and Facebook, continue to rise in popularity. All of these sites deliver platforms for marketing, recruitment and other business aims. The rising popularity coupled with a move towards flexible working means that the boundary between an employee’s obligation to their employer and their private life when using social media continues to become more of a risk for an employer as lines become ‘blurred’.
We continue to receive an increasing number of queries relating to inappropriate conduct by employees using social media during working hours and also when it has been used outside of what are deemed to be ‘normal’ work hours.
We discuss some of those concerns and how employers can adapt their policies and practices to mitigate the risk of social media-related misconduct.
Where does the boundary lie between an individual’s obligation to his or her employer and that individual’s private life?
Although an employer may impose a blanket ban on accessing social media sites through an organisation’s IT systems or during working time, improper and inappropriate use of social media by employees in their own time still carries risk to the employer. These risks include, but are not limited to:
- unauthorised disclosure of the employer’s confidentiality and proprietary information
- infringement of third party intellectual property rights
- liability for discriminatory or defamatory comments posted by employees
- reputational damage
Social media misuse may be construed as misconduct amounting to a potentially fair reason for dismissal and, in some cases, may constitute a repudiatory breach of contract leading to grounds for summary dismissal.
It is a well-established principle of employment law that conduct justifying the dismissal of an employee does not have to be something that occurs in the course of actual work, at the actual place of work, or even be connected with the employee’s work so long as in some respect or other it affects the employee, or could be thought to be likely to affect the employee, when they are carrying out their work.
The key issue for employers, therefore, is whether or not the employee’s misconduct goes to the employment relationship, affects their ability to do their job or causes harm or damage to the employer.
Expressing views which the employer perceives to be offensive or inappropriate
Applying the above principle, it is likely there will be a case for disciplinary action if the employee’s comments on social media are directly linked to the employer or the employee holds their view out to be that of the employer.
However, where the employee’s offensive or inappropriate comments are not directly linked to the employer, the issue is whether the conduct has an impact on the employee’s ability to carry out his or her job. It is likely that an employer will be able to establish that expression of views that are incompatible with the employer’s equal opportunities policy, such as racist or sexist views, will impact on the employee’s ability to carry out their role and the trust and confidence in that employee.
The potential audience of such comments may also be directly relevant to the seriousness of the misconduct. An employee might argue they have privacy settings on said social media counts which limit accessibility. However, as this is difficult to prove, employers are advised to treat any comments or material displaying on social media as potentially being in the public sphere and fully investigate the actual audience of the conduct.
Criticisms of the employer
Social media sites increase the potential for critiques of employers to be made public. Although some employers may seek to argue such comments will bring the company into disrepute or damage reputation, employers should be mindful that to justify a dismissal on these grounds, the damage to the employer’s reputation must be more than merely fanciful.
If the employee is a senior employee, it may be possible to argue that such actions amount to a serious breach of the implied duty of mutual trust and confidence. This will be less likely for lower level employees and, in this instance, the employer would need to demonstrate that the nature of the employee’s role made the comments incompatible with their continued employment. We recommend that an analysis is undertaken of the actual recipients to carefully determine the impact of the comments.
Bullying and harassment through an online forum
Online bullying and harassment may breach an employer’s policy on workplace bullying. Furthermore, if a link is established between the setting in which the act occurred and the relevant employment, the employer may be held vicariously liable. As the tribunal takes a broad approach to establishing vicarious liability, it is likely that if comments relate to conduct in the workplace, they will be considered an extension of the workplace for the test for vicarious liability.
Recommendations: Social media policy
Until we have further guidance from the tribunals and courts as to the boundaries of the employment relationship in the context of social media, we advise employers to adopt a clear social media policy to deal with disciplinary issues arising out of social media-related misconduct. This policy should:
- cover the use of social media by employees at any time and regardless of whether the employer’s equipment is used to access the social media
- impose restriction as to when an employer can be referenced on social media sites
- include a reminder not to make derogatory comments about the employer, colleagues or clients on said sites
The employer may also wish to include an instruction that personal views expressed should not be attributed to the employer.
Finally, we recommend that the policy also includes:
- prohibition on bullying, harassment or otherwise discriminating against employees through social media
- a cross reference to other relevant policies of the employer, such as disciplinary policies and equal opportunity policies
- a warning that a breach of the policy and the publishing of negative comments which damage the company’s reputation might lead to disciplinary action up to and including summary dismissal
If certain employees within the organisation are required to use social media to carry out their role, such as employees in marketing or HR, the employer may wish to consider issuing guidelines for the use of social media sites in a business context, particularly with reference to the protection of the employer’s confidential information.
Recommendations: Minimising risks
To ensure the risks associated with employee’s use of social media are minimised, employers should ensure the policy is:
- made widely available and enforced consistently
- regularly reviewed and updated in line with changes in the law, technology and business practices
- mirrored in recruitment policies
Employers should consider disciplinary action if an employee breaches the policy but should bear in mind that dismissal for a breach of a social media policy is only likely to be justified where the conduct has an impact on the employee’s ability to carry out their job or the breach results in some kind of real damage to the employer and that evidence of this has been obtained.