How to police social media abuse by employees

The use of social media has exploded in recent years. Businesses have caught on to its power and now maintain a strong presence on platforms such as Twitter, Facebook, Instagram and even TikTok. Companies use these and other platforms to connect with consumers, showcasing their products or services, often through lifestyle marketing. The online presence of many businesses has led to a general increase in the public interest of what those businesses, and their employees, are doing. Equally, employers are now taking an interest in the online presence of their employees, with some taking action against staff who post discriminatory, intolerant or abusive content that risks causing offence and reputational damage. Online abuse On 14 July 2021, Greater Manchester Police confirmed they had arrested an estate agent, who allegedly posted a racist tweet following the European Championship final between England and Italy. Within 24 hours of the tweet being posted, the employer issued a statement distancing itself from this individual, confirming that he was suspended from work pending an investigation into his conduct. Other forms of online abuse have also caught the nation’s attention recently. On 27 June, chief medical officer Chris Whitty was accosted by two men while walking in a London park. Footage of the incident was later posted online, leading to public condemnation. One man was initially arrested and charged with common assault, and the newspapers reported that he was dismissed by his employer as a result. The media subsequently reported that a second man was arrested for the same incident. Disciplinaries and dismissals When considering disciplinary action, employers need to ensure they are compliant with contracts of employment, internal policies, ACAS guidance and, of course, the law. Employers will be aware that there are two categories of employment status: employees and workers. Employees and workers both have the right not to be dismissed in breach of their contract or for reasons such as discrimination for making a protected disclosure. Employees have additional rights relating to the fairness of the reason for dismissal. The right not to be unfairly dismissed is limited to employees who have worked for an employer for two continuous years or more. The right means that there are only five potentially fair reasons to dismiss an employee with more than two years’ continuous service: conduct, capability, redundancy, illegality and the catch-all “some other substantial reason”. There are some other reasons which, if proved, are deemed “automatically” unfair with no qualifying period of service required.  While the minimum rights of employees and workers may differ, it is best practice for employers to adopt equally fair and rigorous procedures for all staff when carrying out disciplinary investigations and/or terminating employment. Conduct outside work So, when can an employer discipline or dismiss staff for their behaviour or actions outside work? Employees generally owe their employers a duty of trust and confidence and to comply with the terms of their contract. Sometimes, this can extend beyond the workplace or working hours. It is potentially fair to dismiss an employee for a reason that “relates to the conduct of the employee”, if the conduct in question affects or could be thought to affect the employee when they are working. Incidents involving social media and violence are examples of such conduct, and an employer would need to demonstrate that this has an impact on the employee’s work and potentially caused reputational damage. However, if the conduct on social media is sufficiently remote from the employee’s work, or the employee/employer is not identified, it may not be reasonable for an employer to use this as the basis for disciplinary action. Employers therefore need to take a proportionate and reasonable view, with each case being reviewed on its own merits. Conduct inside work Where the conduct in question happens at work and/or using work devices such as phones and computers, it is likely to be easier for the employer to demonstrate the connection between the conduct and the employee’s work. Many contracts now contain provisions prohibiting the misuse of company property or engaging in discriminatory conduct at work. It is also worth remembering that there is an implied term of trust and confidence between employers and employees. An employer may rely on a breach of this implied term when disciplining staff for posting abusive or discriminatory content online, particularly where the link to their employment may be strong or obvious, for example if the employee is a well-known public figure. Some employees may raise the issue of freedom of speech and association when seeking to defend disciplinary allegations. Employers should take due notice of these arguments as they would want to avoid dismissing an employee who has expressed a “protected belief” under the Equality Act 2010.  While this article sets out the general principles, employers should always seek specialist legal advice when considering disciplinary action against an employee or worker who has posted abusive, discriminatory or otherwise unpleasant content on social media. Daniel Zona is an associate and Tania Goodman is a partner and head of employment at Collyer Bristow Photo © Pexels/Pixabay