Last month, we published a Q&A on handling misconduct outside of the workplace. In the second blog of this two-part series, we will be focusing on the newest and potentially most complex form of misconduct – that which takes place on social media.
Dealing with issues of social media conduct can be complicated, in that the lines between work life and personal life can be blurred. Colleagues and clients can become ‘friends’ on social media, and friends can become colleagues through social media. Stories that may have stayed at the office in the days pre-Internet are now available to browse over dinner at home, and equally details of private home lives may become well-publicised office knowledge.
Still, many feel that comments made on social media platforms such as Facebook, Twitter and Instagram in their own time and in their own environment are not their employer’s concern. Likewise, many employers feel that confronting employees over comments made in their own time might be a violation of their rights and privacy.
It is important to note that, from an employment law perspective, an employer may not take action against an employee for their use of social media outside of the workplace, unless their use could potentially damage the organisation’s reputation or negatively affect the employment relationship and, even if it could, having a Policy in place is really important. Activities classed as ‘misconduct’ include (but are not limited to);
● Making offensive remarks that brings the employer’s reputation into disrepute;
● Publishing offensive material that brings the employer’s reputation into disrepute;
● Making disparaging remarks about colleagues or their employer;
● Misrepresenting their employer’s views;
● Disclosing confidential information belonging to the employer/organisation.
An additional one to consider, particularly for platforms built around visuals (i.e.: Instagram, TikTok, etc), is the posting of photos or video featuring individuals wearing branded uniforms, or standing beside company vehicles, while acting in a manner that is, shall we say, outside of the organisation’s best interests!
So, what steps should employers take when they identify possible social media misconduct?
Investigate Fully
Employers must fully investigate the facts, circumstances and any representations made by the employee concerned, before taking action on social media misconduct. Reasons for this can include anything from reliability of sources (mis-reading, misunderstandings, a vindictive colleague) and employees’ personal challenges (mental health, family issues), through to what happens when someone leaves their social media account on screen unattended, and the prevalence of account hacking.
Some employers may wish to suspend an employee while investigating their actions. However, suspension should usually be reserved for when it is viewed that there is a probable case of gross misconduct that presents a potential threat to the organisation, employees or property, or a risk of evidence tampering.
Consider Disciplinary Action
Where misconduct is identified, a fair Disciplinary procedure must be followed, in accordance with ACAS Code of practice, in the same way as misconduct that takes place offline.
It is helpful to consider the factors Employment Tribunals take (and have taken) into account when determining the fairness of disciplinary actions and dismissals relating to social media misconduct:
● Whether the social media account used was for personal or work purposes;
● The extent to which the posts are visible to the public;
● Whether the conduct took place within or outside of working hours;
● Whether the comments could be taken (by any reasonable person reading them) as being made on behalf of the employer;
● The impact on the business;
● The employee’s role within the business;
● Whether the employer or names of colleagues or clients are made in the post;
● Whether anything in the post can result in the employer being identified;
● Whether the employee was aware (or should have been aware) that their actions were a breach of the employer’s Social Media Policy; and
● Any other mitigating circumstances, such as an apology or removal of the post, and the employee’s disciplinary record.
Move to Dismiss?
Once a robust and fair Disciplinary procedure has been followed, addressing and considering the factors outlined above, the Employer will need to decide if there is sufficient evidence to dismiss, or apply any other disciplinary sanction to the employee. It should be borne in mind that an employee has the right to appeal and, depending on their length of service, they may consider pursuing a claim via the Employment Appeal Tribunal (EAT), should their internal appeal be unsuccessful.
Before reaching a conclusion, it is worth considering the factors the EAT ask Tribunal judges to consider in such cases:
● Whether the employer has a Social Media Policy;
● The nature and severity of the employee’s social media misuse;
● Whether or not the employee had received previous warnings (whether related to social media or other types of misconduct); and
● Whether there was potential or actual damage to customer relationships or the company’s reputation.
(Note: The EAT has not set out special guidance for handling conduct dismissals relating to social media use, stating that each dismissal would likely depend on its own unique facts).
How To Prevent Social Media Misconduct
Have a solid and well-publicised Social Media Policy in place. An organisation’s Social Media Policy should be clear on its corporate image, values and expectations for its employees.
Employees should understand that their conduct on social media can represent themselves and impact the organisation in ways both positive and negative. They should be reminded that what they post to social media may never truly disappear, even if they delete it at later stage, thanks to the nature of ‘screenshotting and sharing’ – actions over which they will have no control.
Provide regular social media and equality training for employees and ensure frequent updates to keep up with the pace of changing technology.
Finally, maintain good records of training given and who attended the sessions.
Conclusion
Social media has blurred the boundaries of our private and working lives, so it’s essential that organisations communicate clearly their expectations of their employees’ conduct when using these platforms. No one wants to stifle anyone’s right or freedom of expression, but at the same time, this needs to be balanced with people’s right to be respected, whether one is in the workplace, at home, in the street, or online.
As one of my colleagues says to her children, if you don’t want your Nanna (or future college/university or employer) seeing or reading about it, don’t post it or comment on social media!