‘Illegal processing of personal data’, ‘infringement of human rights’, ‘restriction on free speech’ –  just some of the misconceptions surrounding employers’ ability to monitor the social media activity of their employees. As all good teachers will say: it’s the substance that counts, not the form.

Despite the surge of electronic communications and social media activity heralded by the advent of smart phones and cheap and fast permanent connections to the internet, many employers remain oblivious to how such activity may impact on their business. And of those that are aware of the problem, many are unclear as to whether there is anything they can do to protect themselves. Some believe that what is said in a public forum is open to public scrutiny and hence employer scrutiny whereas others adopt a more cautious approach, fearing accusations of breaches of human rights, data protection and discrimination.

So what can and can’t employers do? Well, as a starting point, they should look beyond the label “social media.” Social media is (are) nothing more than the name suggests: a medium by which people communicate. Potentially, this medium has the ability to reach a global audience but in most instances, reach will be limited to a few dozen recipients, many of whom may not even read the comments anyway. And thus, comments made public via social media are not dissimilar to comments voiced in public fora such as on the bus or in the pub. It is well established in employment law that how an employee conducts himself or herself outside of work can form the basis of disciplinary action and even dismissal and it is no different with social media activity. Note that we are not talking here about clandestine interception of private e-mail communications from private e-mail accounts. That is a very different matter. When posting comments on public fora (or ones capable of being shared with a wider audience than originally intended), an employee is performing the social media equivalent of holding an indiscreet conversation without regard for who overhears it. Accordingly, unguarded comments, whatever form they take, may have undesired consequences for the unwary employee.

This is the point at which I might be tempted to talk about the need for employers to implement a ‘proper’ social media policy. However, internal policies are of no real assistance when it comes to employees’ extra-curricula’ activities and indeed any attempt to impose restrictions on such activities could well call forth legitimate accusations of human rights infringements, freedom of expression arguments and the like.  In fact, employers need only ask themselves a simple question: “in what way does the tweet/Facebook posting/ Instagram message impact upon my business?” If that answer is “not at all”, then leave well alone – even if you strongly disagree with what has been said. In other cases, it boils down to the age old question of fact and degree, balancing factors such as the degree of impropriety of the statement, the likelihood that the readers will connect the comment and its author to your business, the likely impact on the goodwill of the business and the injured feelings of colleagues. If the line is crossed, then traditional disciplinary action including a full investigation should follow. This is where internal policies come in….a comprehensive set of disciplinary rules and procedures ought to amply cover any situation arising from detrimental use of social media. It is worth remembering that in deciding a claim of unfair dismissal, an employment tribunal cannot substitute its own view for that of the employer. Its remit is limited to reviewing the fairness of procedure and deciding whether dismissal fell within the so-called “band of reasonable responses.”

This blog was written by:  Mark Higgins

DISCLAIMER: Please note that this post sets out the general position under the general law. It should not be acted upon in any specific circumstances without taking specific legal advice as to those circumstances. Also, it should not be relied upon, acted upon or treated as a substitute for specific advice relevant to particular circumstances. If you do require specific advice please contact us for assistance.

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