"All views my own": Monitoring employees' social media

Social media has grown in use exponentially since Facebook was launched 16 years ago, and so has the risk to users. Daniel Piddington examines how employers can keep an eye on their staff's social media posts without falling foul of the law.

Labour MP Rebecca Long-Bailey was "sacked" recently from her role as shadow education secretary for sharing an interview with the actress Maxine Peake on Twitter that had antisemitic overtones. This is just one example of high profile individuals and companies receiving negative publicity as a result of commentary shared on social networking platforms.

These missteps might be explained in part because the law surrounding use of social media walks a line between an individual's work obligations, the right to a private family life and the right to freedom of expression.

It gets hazardous quickly. Unjustified and excessive monitoring could potentially breach the implied term of trust and confidence an employer owes their employee, resulting in a constructive dismissal claim.

Furthermore, when thinking about oversight of content, employers must ensure that they are acting in accordance with the General Data Protection Regulations (GDPR) and the guidance issued by the Information Commissioner's Office. A GDPR breach could cost a business up to 4% of revenue.

Nor does the often used phrase "all views my own", on which many depend, cut much legal ice for an employer; just because an employee's post is located on their personal social media account does not mean an employer can escape liability for the post.

Liability under the Equality Act 2010 can arise if an employee is deemed to have acted "in the course of their employment". The Supreme Court confirmed earlier this year that a similar test applies at common law: "whether the wrongful conduct was so closely connected with acts the employee was authorised to do that, for the purposes of the liability of his employer, it may fairly and properly be regarded as done by the employee whilst acting in the ordinary course of his employment".

Monitoring social media

The starting point is to carefully consider why an employer might want or need to monitor an employee's use of social media. Examples include:

• For marketing and advertising purposes
• To preserve business reputation
• To safeguard against bullying and/or harassment
• To monitor employees' performance
• To ensure compliance with any post-termination restrictive covenants.

The ICO Employment Practices Code outlines that employers must be clear with their employees if they intend to monitor social media accounts. Covert monitoring will only be justified in very exceptional situations.

Employers are advised to communicate the nature, extent and reasons for any monitoring. If an employee's role requires the use of social media on behalf of the company, their contract of employment should be clear as to the requirements and expectations.

In any event, a clear social media and electronic communications policy ought to be in place. Other policies, such as the disciplinary and grievance policy, bullying and harassment policy and the privacy and data protection policy all ought to be updated to account for the social media age.

Disciplinary proceedings

In England and Wales it is well established that an employee's use of social media can be grounds for disciplinary action, up to and including dismissal. The employment appeal tribunal has confirmed that no special rules apply to conduct dismissals arising from use of social media, and therefore the test outlined in s.98 Employment Rights Act 1996 and British Homes Stores Ltd v Burchell remains the test to be applied in considering the fairness of any conduct dismissal. Acas has provided helpful guidance to employers on social media and disciplinaries, which reminds employers that any disciplinary sanction needs to be proportionate to the perceived offence.

However, the need for caution cannot be overstated. Challenges to disciplinary sanctions can result in very costly litigation, either in the employment tribunal or in the civil courts. So how can employers minimise the risks? The following is a list of factors all employers should consider before taking any disciplinary action as a result of social media posts by employees:

• Is there a policy in place? Have employees been warned that their use of social media will be monitored and could result in disciplinary action?
• What role does the employee have within the organisation? Does their role require the use of social media on behalf of the company?
• Is the social media account personal to the individual, or is it a business or work-related account?
• Can the employee be easily identified as associated with the business?
• Does the post specifically identify the organisation?
• What is the nature of the post?
• Is the information confidential or in the public domain?
• When was the post made, during work hours or in the employee's own time?
• Has the post been deleted? If so, after how long?
• Who saw / could have seen the post?
• What impact did / could the post have on the employer's business?
• Have there been other similar incidents and/or warnings to the employee concerned?
• How have other employee's been treated in similar situations?
• Is there any relevant mitigation?
• How long has the employee been employed?
• What is the employee's disciplinary record?

Internal disciplinary action may be just one step necessary for an employer to protect their business. Social media posts may trigger the need for defamation or libel proceedings. Equally, use of social media by exiting employees could result in breaches of non-compete or non-solicitation restrictive covenants. In such circumstances time is of the essence and urgent action may be required to obtain an interim injunction.