During the World Cup, there is likely to be a rise in the misuse of social media by members of staff. Amongst other things, hate speech, discriminatory posts and potentially defamatory comments may be published by your employees causing your business reputational damage. Are you able to discipline an employee for their misuse of social media and, if so, in what circumstances and what are the options available? In this guide, our employment solicitors explain your options.
- How much control do you have over employees’ social media activity?
- To what extent can you monitor employees’ social media activity?
- The importance of having a social media policy at work
- What disciplinary action can you take against an employee that has posted offensive material online?
- What is a fair disciplinary procedure to use relating to conduct on social media?
How much control do you have over employees’ social media activity?
The answer to this is that you will have little control over an employee’s social media activity outside of work, as during their private time they are entitled to pass comments on social media and express their personality. However, an employee does have a duty of loyalty and confidentiality owing to you when employed by you and is bound by the laws of defamation so must refrain from doing anything which might reasonably bring your business into disrepute.
In the workplace, or during the performance of work, the use of social media can be restricted or prohibited altogether, depending on the role, the employee’s contract and your business’ policies.
To what extent can you monitor employees’ social media activity?
A social media policy can help set out when and how monitoring of an employee’s social media usage will take place so that both parties are clear on the rules, particularly when at work or referring to their employment or you as their employer.
Employees do have the right to a private life, and you can only process personal data about employees relating to the workplace meaning private social media platforms should not be searched for information about employees. However, if the employee posts on social media as part of their role, or an employee posts on professional platforms such as LinkedIn, where your business is likely to be referenced specifically on your employee’s profile, monitoring is justifiable. Also, if an employee is a friend of a director or shareholder of the business or friend of a friend then an employee’s transgressions are more likely to be discovered without specific monitoring.
The importance of having a social media policy at work
If you do not already have one, a social media policy can really help with issues such as time theft, defamation, cyber bullying, freedom of speech and the invasion of privacy, as it:
- clearly defines your company’s expectations and how employees should conduct themselves in and outside of the workplace where social media is concerned, consistently with your other company policies;
- sets out restrictions on the use of company IT resources; company intellectual property and confidential and privileged information; use of third-party intellectual property and protection of it; prohibition on harassment and bullying of other employees or discrimination; and on negative or offensive comments about the company, its employees, business contacts or competitors;
- informs employees of the repercussions should they breach the social media policy and to remind employees that social media activity is not necessarily private even if used outside of the workplace and harm caused to the company online can amount to a disciplinary offence to be investigated under the company’s disciplinary policy;
- Minimises risks associated with misuse of social media such as offensive comments, unauthorised disclosure of confidential information, defamation or cyber bullying.
- Can protect brand reputation specifically prohibiting defamatory comments being published on social media platforms both within the employee’s employment contract and written policies. Giving practical examples of what your company would deem as unacceptable social media usage; and
- Amending policies to ensure that employees understand that social media messages may reflect negatively on their employer. Consider requiring employees to state in their social media postings that their views do not necessarily reflect the views of the company and suggest they use personal email addresses instead of a company email address.
If you would like more information on social media policies we have provided this social media policy guide. Importantly, our employment solicitors can help draft or review social media policies for a small fee. If you would like a no obligation quote, please contact us using the form at the bottom of this article.
What disciplinary action can you take against an employee that has posted offensive material online?
- When can or can’t you take disciplinary action? Whilst every employee has the right to freedom of expression and the right to private life, these fundamental rights are not unlimited. The interests and rights of the persons involved must be weighed against each other. You may not be justified in taking disciplinary action if you have not taken action historically for a similar action or comment relating to social media when posted by another employee at the same level of the business, or if it is on a private social media account and in no way relates to work and cannot be related to the employees’ employment with you. However, if there is a clear breach of your business’ social media policy, for example by using social media platforms during work time, using a work computer and this is disallowed by your business, disciplinary action is likely to be justified. In particular, if an employee infringes the legitimate interests of your business or its reputation, is responsible for an unauthorised disclosure of confidential information, or negatively effects other employees, disciplinary action is likely to be viewed as a reasonable consequence if applied consistently. If you consider that there may be justification for disciplinary action but you are unsure, you may want to seek legal advice, but the first step will usually be to investigate the situation informally under your disciplinary procedure with or without suspending the employee being investigated with a clear explanation in writing that no disciplinary decision has yet been made.
- Could this be sufficiently serious to warrant dismissal? This will largely be dependent on your social media and disciplinary policies and how closely the content relates to your business and the potential damage that could be done to your business as a result of the social media comment. If the comment in question relates to a gross misconduct offence it may justify summary dismissal on a first offence, or if the employee has had a number of warnings already following your disciplinary policy a further offence could also justify dismissal in some cases. The specifics of what your employee has said and how that links to your business will help to determine whether a social media comment justifies dismissal. For instance, the behaviour or comments by the CEO is likely to reflect more severely on your business than those of a more junior employee and so some inconsistency in their treatment under your disciplinary policy might be reasonable. By way of a further example, if an employee makes a discriminatory comment on social media and is an employee in human resources, this may well be considered more fundamental to their role and more likely to be damaging to your business and so may justify summary dismissal. In the case of criminally punishable behaviour on social media towards third parties, simply having any association with that individual may be sufficient to cause damage to your business and be capable of justifying dismissal. Particularly in the case of employees with more than 2 years’ service within your business, who may be able to bring claims for ordinary unfair dismissal, if you are unsure, seek specialist employment advice before taking formal action against an employee.
- Does it matter if the profile can be easily linked to your company? If the profile is one that specifically mentions you as an employer and is used for work purposes, such as a LinkedIn profile, the damage to your business is likely to be more severe than on a private Facebook account of an employee, for instance. However, this does not mean that where an employee’s profile does not mention their employer that you cannot take disciplinary action. If your employee is friends with colleagues, suppliers and even customers of your business there will be knowledge that your business is linked to that individual without their profile stating this on social media platforms and so this may also impact negatively on your business where social media has been used in contravention of your social media policy. In principle though, by whatever means, if there is more of a close link between the negative actions or comments of an employee and your business, the consequences for the employee should be more severe as the impact on your business is also likely to be more severe.
- What if the post was made in or outside of work hours? The default position is that, as an employer, generally you may not impose regulations on the private life of your employees when they are outside of work, as they are free to lead a private life and to express their opinions. However, with more hybrid and flexible methods of working, what constitutes inside and outside of work is becoming more blurred and whilst some situations may be clear cut, and clearly justify disciplinary action, such as an offensive comment made on social media during working hours made from a work device, it may not always be so easy to distinguish when an employee is working or not. If an employee is, say, on a break and using their personal mobile telephone but makes the same offensive comment on the same social media platform and this has the same damaging impact on your business, disciplinary action will probably still be warranted. In the latter case, there is, however, likely to be more of an investigation required first, as it is likely a less obvious breach of your disciplinary policy and less obviously discoverable than if an employee uses a business device during working hours.
What is a fair disciplinary procedure to use relating to conduct on social media?
In order to fairly discipline an employee you must follow your disciplinary policy. It is crucial that you ensure you are consistent when disciplining employees relating to their use of and comments on social media platforms and can justify the action taken by the impact the employees’ comments or behaviours have on your business, to avoid the risk of claims arising including in relation to discrimination or unfair dismissal. There should be an investigation into the employee’s conduct and the employee should be made aware of any allegations being made against them in order to defend themselves. Our article on disciplinary procedures here is a useful guide. The ACAS Code of Practice on Disciplinary and Grievance Procedures applies in the usual way with a disciplinary in connection with social media-related conduct and so compensation awarded to an employee may be increased by up to 25% if they later succeed in an unfair dismissal claim and it is found that a fair disciplinary process was not followed. If are unsure of what action to take or would like assistance with your disciplinary procedure, our employment solicitors can guide you.
During the World Cup, where emotions are likely to run high and social media is likely going to be used more as a medium for people to communicate, it is worth making clear the rules relating to social media outside and inside of the workplace where it may affect your business. If you are able to provide a social media policy for employee reference and provide training or open discussion so that employees are aware of what is and is not acceptable, this can reduce the need to take disciplinary action further down the road. Where an employee has clearly breached your social media policy and caused significant damage to your business, there is likely to be justification for disciplinary action up to and including summary dismissal. To reduce the risk of your business having to defend employment claims, a full investigation should be carried out before action is taken and your disciplinary policy must be followed. If you would like help with drafting or updating your business’ disciplinary or social media policies, our lawyers can help. Where social media related actions or behaviour may be damaging to your business, but you are less sure about the appropriate sanction, the balancing of interests between an employee’s freedom of expression and right to private life and their duty of loyalty and confidentiality to you as the employer requires weighing up and you may wish to seek legal advice before taking action.