Daniel Piddington 22 July 2020

Taking action over an employee’s social media posts

A wayward social media post by an employee can not only result in adverse national publicity, and damage to public relationships, but can result in already financially strapped councils facing liability for hefty legal costs and compensation payments.

However, local authorities must take particular care when considering what action to take over an employee’s social media posts. A wrong move could result in claims of breach of the right to respect for private and family life, or the right to freedom of expression.

Word of warning

Monitoring of social media accounts brings with it its own pitfalls. Covert monitoring will only be justified in very exceptional situations. The General Data Protection Regulations (GDPR) apply and a breach could result in significant financial penalties.

The ICO Employment Practices Guide outlines that employers must be clear with their employees if they intend to monitor social media accounts detailing the nature, extent and reasons for any monitoring.

“All views my own”

It is now all too common to see social media accounts banding this phrase, but it by no means offers immunity from disciplinary action. Employers are entitled to rely upon an employee’s duty of fidelity and loyalty. Activity on social media may itself amount to misconduct warranting disciplinary action, such as:

a) using the platform for the purposes of bullying and harassment;

b) disclosing confidential information;

c) writing disparaging comments about the employer, other employees or customers;

d) writing or publishing offensive material which brings the employer into disrepute.

As rightly highlighted by ACAS in their guidance, any disciplinary sanction needs to be proportionate to the perceived offence. If an employee has a clean disciplinary record, dismissal is only likely to be warranted if the action is clearly identified as potential gross misconduct in the contract of employment and/or any disciplinary policy, or it can be established that the relationship of trust and confidence has been seriously undermined.

To best protect the authority, it is advised that the following steps are adopted:

1. If an individual is required to use social media in their job role, ensure their contract is clear as to what is permitted and what is required.

2. Implement a clear Social Media and Electronic Communications Policy.

3. Ensure the Disciplinary and Grievance, Bullying and Harassment and Privacy and Data Protection Policies all include reference to use of social media.

4. Comply with the ICO guidance and GDPR.

5. Fully investigate any allegations of inappropriate social media use, including:

  • Whether the post has been deleted, and if so when.
  • Who was able to see the post.
  • How may interactions there were.
  • Whether the individual uses social media as part of their role.
  • Whether the post was made during working hours.
  • The nature of the post.
  • The actual or potential damage.
  • Whether a reasonable reader could rationally conclude that comments consisted of, or included, statements made on the authority’s behalf.

6. Consider the employee’s length of service and disciplinary record.

7. Consider any mitigation.

8. Ensure consistency of treatment in similar situations.

Equally, the existence of a disclaimer does not provide a definitive defence by the employer to a potential claim. The Equality Act 2010 imposes liability upon an employer for discriminatory acts of their employees which have occurred in the course of employment, unless the employer can establish that they took all reasonable steps to avoid the discrimination. The recent decision of the Supreme Court in WM Morrisons Supermarkets v Various Claimants confirmed an arguably wider test at common law, namely 'whether the wrongful conduct was so closely connected with acts the employee was authorised to do that ... it may fairly and properly be regarded as done by the employee whilst acting in the ordinary course of his employment'.

Whilst the existence of a disclaimer may be a relevant factor, the court or tribunal will go further and consider all the circumstances.

Daniel Piddington is a barrister and head of employment at College Chambers

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