Social media risks for employees and employers

  11th November 2019       Private: Bond Williams
 Client, Accounting & Finance, Engineering, Science & Space, Employment, Human Resources, IT & Software Solutions, Office & Commercial

A whopping 67% of the UK population use social media for an average of just under two hours per day, and despite its increasing ‘official’ use for work purposes, there are still huge risks to both employers and employees.

Regardless of when someone uses social media and in what capacity – either during work, outside of work, for personal use or professional use – the content shared could leave individuals and businesses in hot water.

It’s pretty obvious that, as an employee, if you pull a ‘sickie’ but your social media profile shows you at a party, or openly criticise your boss on Facebook, you’ll likely be disciplined. Employers also need to be careful not to offend, discriminate or plagiarise on social media to avoid tribunal claims and fines.

After all, publishing content on social media is still that – publishing it. And for the world to see. Social media companies are getting better at monitoring and restricting posts, but essentially, you are still responsible for your own content. You don’t have the luxury of an editor checking the legality, accuracy or morality of content on your behalf.

Damage to reputation and finances

Your social media posts can have damaging consequences to your brand, reputation and bank balance whether you’re an individual or business.

There are several instances where brands have failed epically, posted without thinking and had to make very public apologies. In 2013, a Tesco tweet included ‘It’s sleepy time so we’re off to hit the hay!’ during the horse meat scandal. After snowfall one winter, Luton Airport posted an image of a plane crash with the caption ‘Because we are such a superior airport…This is what we prevent you from when it snows…weee’. Sadly, the picture was of a crash in which a child had been killed.

In more severe cases, legal action has been taken.

One notable example from America is the case of Elon Musk, the billionaire CEO of automotive company, Telsa. He and the company were fined $20 million each after being charged with misleading investors following tweets that said he was considering taking the company private at $420 a share. In the UK, a solicitor was fine over £2,000 and rebuked for repeatedly posting on social media about criminal cases he was advising on, and sometimes trivialising them with the use of insensitive emojis.

There are also increasing cases of businesses being fined for posting fake customer testimonials, pulling content from Google Images or failing to disclose influencer marketing campaigns.

For employees, their social media activity can threaten their job and livelihood.

In 2013, an Applebee’s employee in the US was fired after posting an image on Reddit of a note left by a customer that read, “I give God 10%, why do you get 18%?” This went viral and resulted in the individual being fired, announced via the brand’s Facebook page… “We wish this situation hadn’t happened. Our Guests’ personal information – including their meal check – is private, and neither Applebee’s nor its franchisees have a right to share information publicly. We value our Guests’ trust above all else. Our franchisee has apologized to the Guest and has taken disciplinary action with the Team Member for violating their Guest’s right to privacy.” The public was outraged that the server was let go, so not only did the server lose their income, but Applebee’s likely lost customers!

There have also been several high-profile fines by the Football Association as a result of offensive tweets by players and in soap land, Emmerdale actress Shila Iqbal was sacked for historical social media posts.

Fair dismissal or infringement on Human Rights?

Increasingly, employees are bringing claims to the Employment Tribunal for unfair dismissal following social media activity, quoting the ECHR that it’s an infringement of their right to a private life and/or freedom of expression.

Posting derogatory comments on social media about fellow employees or an employer is always risky, but case law has shown that it isn’t always grounds for fair dismissal; nor does it exclude anyone from being fairly dismissed if the content was posted outside of working hours or simply because there was a social media policy in place.

In the case of Teggart v Teletech UK Ltd, the claimant argued unsuccessfully that his Facebook comments speculating about a female colleague’s sexual activity was a private matter and his human rights had been breached. The Tribunal refuted this, saying he had harassed the woman and said that comments made on Facebook were in the public domain.

In comparison, a B&Q worker was dismissed for gross misconduct for posting derogatory comments about his place of work, which the employer took to be a breach of its social media policy (Trasler v B&Q Ltd). He had a clean disciplinary record and argued that he had had a bad day at work and was letting off steam. The tribunal held that his employers had acted unfairly whilst reducing the claimant’s compensatory award by 50%.

In another case detailed on Practical Law, it was sex discrimination, harassment and victimisation being claimed by an employee after she resigned following a tweet. Her Twitter bio showed her role and employer name but stated that all thoughts were her own. Following a programme on the sexual harassment of hostesses at a venue, she posted a tweet corroborating the story as a former hostess herself, and it went viral. She was approached to do an anonymous interview, which she agreed to after getting permission from various people at her place of work but was reprimanded by her line manager for failing to get his permission, showing poor judgement in giving the interview, and failing to comply with the employer’s social media policy by naming them in her bio.

Her claims for sex discrimination and harassment failed but her victimisation claim succeeded and she was awarded £6,000 plus interest in damages. She had suffered a detriment as a result of posting her tweet and giving an interview about sexual harassment and the #metoo movement, which were protected acts under section 27(2) of the Equality Act 2010.

Vicarious liability

In the recent case of Forbes v LHR Airport Ltd, an employee had posted an offensive image on Facebook. The Claimant complained that racist images were being circulated amongst his colleagues and around the workplace. He sought to bring claims of victimisation, harassment and race discrimination.

The Employment Tribunal looked at the timing and nature of the post to determine whether it was carried out during the ‘course of employment’.  The Tribunal concluded that as the post was shared outside of working hours, it was not in the ‘course of employment’ and therefore LHR Airport Ltd could not be vicariously liable for the actions of its employee. The claim was dismissed.

The Claimant appealed to the Employment Appeal Tribunal (EAT), where they upheld the Tribunal’s decision. When making its decision, the EAT looked into the fact that it was shared through a private Facebook to a list of friends which did not include the Claimant. It was the subsequent act of another colleague which brought the photo up during work to show the Claimant.

Although this case is good news for employers, it does highlight how difficult it can be as to whether an act falls into the ‘course of employment’ if it was done online.

Preventative measures

Having a clear social media policy is critical, but even this won’t ensure employers can instantly dismiss employees. Having social media guidelines when it comes to business use is also important, but there’s always a risk of human error.

The key is to ‘pause before you post’ – create yourself or your business a checklist to avoid a social media disaster.

Private: Bond Williams


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