Social media has grown vastly over recent years and there can sometimes be friction between employers and employees regarding how individuals make use of it. This is not just within work time, but employees use generally and what they say on these platforms.

Employee rights

Employees have a right to a private life and freedom of expression, but they also have obligations to their employer. The balance between these aspects can sometimes be contentious. For example, if an employer is monitoring the employee and their social media use in an excessive or unjustified manner, it could be alleged that this breaches the implied contractual term of mutual trust and confidence. This could result in a constructive dismissal claim.

Added to this, we must also consider that even if the employee states that the views on social media are their own, the employer may still be liable under the Equality Act 2010 if the posts are deemed to be ‘in the course of employment’. Comments that are discriminatory by the employee could still land an employer in hot water.

An employee’s use of social media can be grounds for a disciplinary warning and ultimately dismissal. The test set out in the Employments Rights Act 1996 as supplemented by the case law stemming from British Homes Stores v Burchell, still applies in assessing the fairness of a dismissal. Any sanction needs to be reasonable and proportionate.

Considerations

Employers should consider the following when taking any disciplinary action as a result of social media posts by employees:

  • Is there a policy in place?
  • Have employees been made aware that their use of social media will be monitored and could result in disciplinary action?
  • Is the social media account personal to the individual, or is it a business or work-related?
  • What role does the employee have within the business?
  • Does the post identify the employer?
  • Can the employee be easily identified as associated with the business?
  • What is the post about?
  • Is the information confidential or in the public domain?
  • When was the post made, during work hours or in the employee’s own time?
  • Has the post been deleted? If so, after how long?
  • Who saw/could have seen the post?
  • What impact did/could the post have on the employer’s business?
  • Have there been other similar incidents and/or warnings to the employee concerned?
  • How have other employees been treated in similar situations?
  • Is there any relevant mitigation?
  • How long has the employee been employed?
  • What is the employee’s disciplinary record?

Next steps

Having a social media policy is essential as well as taking a measured and reasonable approach. If you need assistance putting a policy in place or would like to discuss any issues relating to social media in your business, call us on 0345 076 2288 or send us an email.