Social Media: When Free Speech and Reputational Damage Collides

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Considerations for Employers

This week has seen the outgoing President of the USA being Impeached for a second time for allegedly inciting and encouraging his supporters to storm Congress and attack the Capitol building, following which 5 people, including a Police Officer, died.

It is something of an understatement to say that Mr Trump has been a very divisive figure in world politics, but he has also been a prolific user of social media during his time in office. Such was his use of social media in inciting the alleged insurrection, that Facebook, Twitter and YouTube have permanently banned him from their platforms.

In this article we look at the rise of social media and ask just how concerned employers should be about the online activities of their workforce.

What is social media?

Social media is a digital tool that allows users to quickly create and share content with the public, or anyone who visits their on-line profile.

Social media has a wide range of websites and apps such as Twitter, where the user can share short messages and links and platforms such as Facebook and Instagram which involves the user posting and sharing content such as videos and photos.

From a business standpoint, the benefits in terms of advertising and customer interaction are clear to see. Likewise, platforms such as LinkedIn are a great way for professionals to connect.

What are the main implications for employers?

  • Confidentiality

This is one of the biggest concerns employers have and sadly we here at Avensure have seen cases where employees have shared confidential information via social media. Sometimes it has been purely accidental with little to no impact but on other occasions it has been malicious and very damaging.

As well as the implied term of trust and confidence which all employees (and employers) are required to abide by, the confidentiality policies and social media policies which you should have in place are there for a reason. They will set out exactly what your standards are, so if you suspect they have been breached, don’t delay- seek our advice, the sooner you act the more chance you have of stemming the damage.

  • Dereliction of duty

Employees may need to use social media as part of their jobs and may well use their breaks or lunch periods to check in with their various social media accounts.

However, when they are on your paid time they should be working, not browsing Facebook. This all amounts to lost time and if not properly managed means that you are losing money.

Many organisations have IT policies setting out the rules on the use of company time and equipment for personal use but as with all policies and procedures, they are of little value unless you act on them.

  • Liability for employers when employees express their ‘personal views’

This hit the headlines last year when Labour MP Rebecca Long Bailey was sacked from her post as Shadow Education Secretary for sharing a link to an interview with Actor Maxine Peake which contained antisemitic conspiracy theories.

By retweeting the article, the party leader Sir Kier Starmer felt that this would have a negative impact on rebuilding trust with Jewish communities and as such took action to remove her from her post.

Whilst a high-profile example, it’s a clear example of social media activity impacting severely on the reputation of the employer and potentially rendering someone’s role untenable.

It is worth mentioning though that cases like this are very rare and not every case leads to dismissal. Advise from our experts must be taken before taking any action to remove anyone from their role for whatever reason.

  • Harassment and bullying

As an employer you have a duty of care to ensure that staff are provided with a working environment free from hostility but how can an employer be expected to manage bullying which occurs on social media? Surely that is outside the scope of the employer’s responsibilities?

Not necessarily. Imagine if an employee were making bullying, abusive phone calls to a co-worker outside work and reported it to you, you would (and should) feel duty bound to take action to stop this from happening. Whilst it has occurred outside of the workplace, the hostility and upset this would cause would almost certainly migrate to the workplace.

The same thing applies with social media. Of course, you can only act upon what you know about but if you do hear of this sort of thing happening or receive a complaint, it is vital that you take appropriate action and our experts will guide you on managing this.

Please see our guide to managing bullying at work

  • Discrimination

We have already touched on this above. Whether employees are taking part in the harassment of a co-worker via social media and that harassment is of a discriminatory nature or whether they are posting content which is discriminatory. Whether posted during working time or not, there could be implications for your company.

For more information on the subject of discrimination, please see our guide to promoting equality and diversity which also contains like to our employers guides to avoiding costly discrimination claims (read more)

Can we instruct employees to remove content from their social media?

In the case involving the Labour Party, this instruction was given and followed, however the damage appeared to have been done.

As a business, if an employee’s social media refers to their place of work and they post something discriminatory or defamatory for example, as a business you can take reasonable steps to remedy the impact this will have on your business by asking that the post be removed.

Can employers monitor social media accounts of their staff?

Monitoring is one thing, being nosey and infringing on a person’s right to a private life is another.

Certainly, covert monitoring of social media accounts is generally not advised and if any monitoring is going on then the employer must ensure, usually by way of a social media policy, that monitoring is taking place, why it is taking place and how that information may be used.

Can an employee be dismissed for their social media posts?

If you are concerned about an employee’s actions on social media and there has been a clear breach of the rules, you may be able to take formal disciplinary action.

This will require a thorough investigation and a fair procedure.

Often employees will cite that their employer has infringed their rights to freedom of expression by holding them to account in this way. However, when expressing your opinion or ‘speaking your truth’ comes at the expense of the safety and rights of others, it is entirely legitimate to hold someone to account for their actions.

The right to free speech does not entitle anyone to damage your business, bully or threaten their colleagues or breach the Equality Act.

It is however very subjective in a lot of cases, so as always there isn’t a one size fits all approach, as these two cases illustrate:

Teggart v Teletech UK Ltd.

The claimant made comments on Facebook about a female colleague and her alleged sexual activities. He was dismissed and argued he his dismissal was unfair because his views were a private matter and his human rights to that privacy had been breached.

The Employment Tribunal did not agree and instead it was found that his actions amounted to sexual harassment. The Tribunal also added that the right to freedom of expression had to be exercised responsibly and did not permit the claimant to make comments that damaged a person’s reputation or impinged on their right not to suffer harassment.

Trasler v B&Q Ltd.

Mr Trasler was dismissed for gross misconduct for posting derogatory comments about his place of work.

He was disciplined for breaching the company social media policy, however the tribunal found that given his clean record and explanations that he was simply having ‘a bad day at work and was letting off steam’ meant that the decision to dismiss was outside the band of reasonable responses and his claim for unfair dismissal succeeded.

In summary, social media is a great business tool but also a tricky thing to manage in terms of privacy and data protection.

However, you are not stuck with simply putting up with damaging online posts. The key is to act early and seek our expert advice.

Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0800 151 2935.