Paul Ball: Social media misuse – what can employers do?

Most employees in any business will have some degree of social media presence, whether as a regular poster across Instagram, TikTok, Facebook or X, or someone who just has an old, dormant social media profile.

While it’s ultimately up to the individual employee to determine the extent of their social media usage, it can present challenges for employers, particularly when employees’ personal social media activities conflict with the company’s values.

What types of content on social media may cause issues?

Controversial takes on topics including (but not limited to) the following might cause issues:

• Politics
• Sexuality
• Race
• Religion

Can employers dismiss employees for misuse of social media?

Dismissing an employee for their comments on social media can potentially be fair, if the employer can demonstrate:

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1. A potentially fair reason for the dismissal – conduct is likely to be the reason for dismissal, such as if the employee has made controversial or derogatory comments about the employer or its customers on a social media platform in breach of the employer’s social media policy.

• That, bearing in mind the employer’s size and administrative resources, they acted reasonably in treating the social media activity as a sufficient reason for dismissal – the employer will need to show they followed a fair procedure and acted reasonably in treating the activity as a sufficient reason for dismissal. A Tribunal will consider whether the decision to dismiss was within the band of reasonable responses (but should not substitute their view).

Case law provides guidance that a Tribunal should consider, in order to determine whether a dismissal related to an employee’s social media activity is fair:

• Whether the employee has a social media policy.
• The nature and seriousness of the alleged misuse.
• Any previous warnings for similar misconduct.
• Actual or potential damage to customer relationships.

Risks associated with taking disciplinary action

Taking disciplinary action over social media use may infringe upon rights protected under Article 8 (right to respect for private and family life) and/or Article 10 (right to freedom of expression) of the European Convention on Human Rights. Therefore, any such action must carefully balance these rights with the employer’s professional expectations.

In addition,if the dismissal is in relation to an employee expressing their own views or beliefs through their social media accounts, an employer would need to consider if those beliefs fall within a protected characteristic under the Equality Act 2010, and if so, consider whether any action might amount to discrimination, and whether in the circumstances it is a justified response to dismiss the employee.

Recommendations for employers

• Implement a robust social media policy, which broadly covers the following:

1. Guidance on permissible content – for example, sharing confidential information about clients or discussing business performance should be explicitly prohibited.
2. Distinction between personal and business accounts. This could include restrictions on referencing the employer’s name on personal accounts, and disclaimer wording that should be used on business related accounts in relation to personal views not being attributed to the employer.
3. Prohibition on bullying, harassment or discrimination in any circumstances.
4. Warning of disciplinary action (including potential dismissal) for any breach of the policy, with appropriate references to the employer’s disciplinary policy.

• Conduct thorough investigations where misuse of social media has been reported or identified, having consideration to the following:

1. Seriousness of the misuse and any damage caused.
2. Whether the social media policy has been breached.
3. Appropriateness of dismissal versus lesser sanctions – any sanction should be proportionate.

• Provide training if appropriate

Offer training sessions to educate employees on the social media policy, including examples of acceptable and unacceptable conduct.

• Monitor social media use proportionately

If monitoring is necessary, ensure it is proportionate, transparent, and compliant with data protection laws (e.g., UK GDPR). Clearly communicate the extent and purpose of any monitoring in the social media or privacy policy.

While it is good to have policies and procedures in place to deal with any issues resulting from employees’ social media activity, employers should ensure they treat each case individually and not take a ‘one size fits all’ approach to dealing with issues.

Paul Ball

Employment Partner at Gateley Legal

Paul has advised employers on all aspects of employment law for 30 years and has particular experience in relation to discrimination issues, contractual issues arising on business transfers, and the delivery of in-house client training.

Paul has spent time on secondment as acting in-house Employment Counsel for an integrated facilities management business, advising senior HR and management in relation to strategic issues and best practice in handling some of the fundamental aspects of employment law responsibilities.