Social media is an increasingly popular and frequently used tool, often harnessed by employers to market their services and network with clients and referrers. As well as its potential for business development, social media is also used in a personal capacity by employees to share their thoughts and photographs with family, friends and other connections. The likes of ‘X’ (formally Twitter), Instagram and Facebook remain popular many years after they were first developed, competing with new apps that have been recently introduced to the world of social media such as ‘Threads’ and ‘BeReal’.
For employers, the concept of the ever-expanding world of social media can be daunting. Employees often take to social media sites to vent their concerns or frustrations after a hard working day, and naturally, there is a conflict between an individual’s right to freedom of expression, and an employer’s right to protect its reputation and confidential information. For example, the app ‘BeReal’ encourages users to capture and share a real time photograph within two minutes of receiving a notification from the app. The app attempts to encourage ‘real’ and unfiltered photographs, and therefore notifications will be sent to users throughout the working day. This poses a risk that employees will take a photograph in which a computer screen or notebook can inadvertently be seen in the background, which could in turn lead to a leak of confidential business information or data.
There are a number of cases in the Employment Tribunal (ET) which concern the misuse of social media by employees. Employees will be reminded of the danger of making disparaging social media posts about their employers by cases such as Weeks v Everything Everywhere Ltd.
In this case, Mr Weeks published a number of derogatory posts on his Facebook page about the place he worked, regularly comparing it to ‘Dante’s Inferno’. He was confronted by his line manager for the comments that he had made online, and agreed to refrain from doing so in future. However, Mr Weeks continued to make similar posts and was therefore dismissed for breaching the company social media policy. He claimed that he had been unfairly dismissed, but the ET did not agree, stating that Mr Weeks’ comments were likely to cause reputational damage and that the response of his employer to dismiss him was a reasonable one.
Employees should also be aware that it is not just inappropriate and derogatory comments made directly about work that might lead to a dismissal. In the case of Game Retail Ltd v Laws, Mr Laws set up a private ‘X’ account that was not linked in any way to his employer. On this account, Mr Laws made inappropriate and offensive comments about various groups of people, including disabled people, dentists and caravan drivers. He was dismissed for gross misconduct, but argued that he had been unfairly dismissed.
The Employment Appeal Tribunal (EAT) considered that Mr Laws’ employer’s right to reduce reputational risk through social media has to be balanced against the employee’s freedom of expression, and that in this case, his comments online had the potential to cause offence and reputational damage. The EAT took into account that the employee had not attempted to ensure that his comments only went out to a private audience and he had not adjusted his settings to restrict his followers.
Our advice for employers
Businesses should ensure that they have a clear social media policy in place, to include the following:
- Clear expectations of employees’ use of social media
- A clear definition of what the employer considers to be confidential information, and how this should be treated by employees
- Any limits on the use of social media by employees
- Consequences of breaches by employees of the social media policy.
Providing a clear framework for employees which sets out expectations on social media use will allow businesses to harness excellent opportunities from social media with limitations and boundaries. It is also helpful to set out the consequences of breaching the social media policy, so that employees are clear on repercussions. This will hopefully foster a positive use of social media and reduce the likelihood of ET claims such as the aforementioned in which employees claim they have been unfairly dismissed.
Our advice for employees
It sounds simple, but employees should think carefully before posting anything on social media. It is easy after a difficult day at work to jump online and make a post without thinking it through in the heat of the moment. It is important to take a step back, and consider whether you would be happy for a post to be shown to a manager or boss at work, and whether you would feel comfortable being questioned about your post in a public sphere.
If you would like any assistance in drafting or updating a social media policy for your business, please get in touch with one of the Employment team.