Drawing a line between work and personal life can often be difficult, especially in a world where we’re always connected and social media is such a huge part of our lives.
Where personal opinions were once private, social media is making these public, with some people believing they should be able to voice any opinion they like across their personal social platforms.
So, what happens when an employee’s conduct on social media affects the employment relationship? Here, Michael Shroot, who is chief executive officer at WHN and a solicitor specialising in employment law, explores the thorny issue.
Acceptable behaviour
If a staff member’s social media account clearly references the company they work for, then based on an employer’s right not to suffer a loss of reputation, anything posted on that channel is subject to disciplinary measures if it inadvertently damages the reputation of the business.
What would constitute grounds for disciplinary action is contextual in relation to social media, so any action will need to be tailored to the content and circumstances surrounding the post.
Loss of reputation
While it’s possible to fairly dismiss an employee for conduct outside of work, the key concern is whether the employee’s conduct affects the employment relationship, their ability to do the job, or whether it damages the employer’s reputation.
This may include disclosing confidential business information, abusing colleagues, or in the case of Lucy Skinner who was sacked from her role at the Co-Op after posting videos to TikTok while in company uniform, using derogatory terms about customers and speaking negatively about the business.
Online conduct and misuse of social media, including posts or comments made online, should follow a fair disciplinary procedure, just like any other workplace issue.
Fair disciplinary procedures
Falling foul of a fair procedure can still result in an unfair dismissal claim, even if the employer had a good reason for the dismissal itself, so the ACAS Code of Practice and any contractual documents relating to disciplinary procedures should be complied with at all times.
Employers should also follow the ACAS social media discipline and grievance guidance when dealing with issues surrounding these platforms.
An employer should also have a carefully drafted social media policy to deal with these matters.
Social media policies
A social media policy should be drafted and implemented fairly. It should make clear what is expected of staff while using social media and how they’re expected to conduct themselves online, as well as stating what constitutes an act of misconduct or gross misconduct relating to social media postings.
Policies of this type should also typically include a company’s stance on social media use, dictating whether an employee is allowed to access and post to social media platforms throughout the working day.
Not clear cut
Dismissing employees due to social media posts is not a straightforward matter and employers should proceed with caution when disciplining and dismissing staff, otherwise they may find themselves open to an expensive unfair and wrongful dismissal claim.
This is a highly complex area of law and given each case is fact sensitive and the usual unfair dismissal rules apply, the need for specialist legal advice is essential.
Michael Shroot is chief executive officer and a solicitor based at WHN’s Bury office. Michael has specific expertise in employment law and contract disputes. He is a member of the Employment Lawyers Association. To contact Michael, call him on 0161 761 8087 or email michael.shroot@whnsolicitors.co.uk
