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October 31, 2023

When can employers intervene in their employees’ (un)social media conduct?

Following the recent developments brought about by Forstater v CGD Europe UKEAT/0105/20, we decided to focus our latest Glasgow HR Club session this morning on the law protecting ‘religion or belief’ under the Equality Act 2010. Social media was an area we focussed on given this is an area that, due to its very nature and how comfortable people tend to be ‘manifesting’ their views online, can be particularly difficult for employers to deal with.

Most businesses use social media to communicate with their clients and customers. Some even request that their employees make specific work social media profiles to increase their online presence and help spread news and updates about the organisation to their clients or potential clients. Even if employees don’t have specific work social media accounts, the chances are the vast majority of people have at least one personal social media account. Some employers will encourage employees to share, comment, like and generally interact with the employer’s posts in order to gain traction online and boost the organisation’s profile. There are huge benefits to utilising social media from a business development and marketing perspective, but there are also often issues where employees conduct themselves inappropriately online.

So, where is the line? At what point can an employer or HR intervene with regard to social media posts or interactions involving employees?

In the course of employment
When considering this, as a preliminary issue we need to decide whether the posts or interactions should be considered as having happened ‘in the course of employment’ as this is where the remit of the employer starts and ends. With social media posting though, there is an element of nuance that can make interpreting ‘in the course of employment’ trickier than usual.

What factors do we need to consider?
Does the post originate from an officially designated work social media profile? Where a post
originates from an account created to share posts about and promote the employer, it would be likely that this would be considered in the ‘course of employment’.

It can be more difficult to deem something as happening in the course of employment where
the post originates from a personal social media account. A critical consideration should
always be who can view the post. Is it available to the public or the poster’s colleagues
or is it restricted to close family and friends? Although, it should be noted that there is case
law which says that even if a post originates from a private account there is a limit to the
expectation for a private life, under Article 8 of the European Convention on Human Rights.

The courts have found that with regards to social media posts, any expectation of privacy is
lost by the very nature of social media and the internet.

What are the privacy settings on the account like?
— Can you trace the account to the employer?
— Does the profile list the account holder’s employer or where they work?
—Does the company logo appear on the profile picture on the account or cover photo?
—Even if there is no specific linking through naming the employer, can you see posts previously shared by the employee on their profile and can you link the account to the employer that way?

There are also more tangible factors to take into consideration:
— Was the post made from a work mobile or laptop?
— Was the post made during work hours?

Damage to the employer’s reputation?
Sometimes where the circumstances of the act of posting may be considered out with the course of employment, the content of the post can bring it back into the sphere of employment. In these circumstances, it’s worth considering whether the nature of the post is related to the nature of the business and so likely to cause particular and specific damage to the employer’s reputation with their client-base. Where freedom of expression, under Article 10 of the European Convention on Human Rights, is invoked as a defence to inappropriate social media conduct, there is case law which states that this freedom is not unfettered and should be balanced with the business’ legitimate right to protect its reputation.

Other situations which could bring social media conduct into the sphere of the employer include where two colleagues who only know each other through work connect using their personal social media accounts and have an altercation. If this has the potential to affect either the employee’s work or the workplace generally, it is worth considering if the employer should intervene.

Where an employee complains to HR or their employer about the social media conduct or posts of a colleague, it may be worthwhile to act to keep the peace and maintain good working relationships between your employees.

My colleague, Ciaran, has recently written a blog post about the importance for employers of a robust Social Media policy, especially in this day and age (Social Media Sending Off – Business Legal News from Blackadders Solicitors) even where it doesn’t seem to play a large part in the business. I would reiterate that the clarity that a social media policy can bring to otherwise murky circumstances is invaluable.

We hold HR Club sessions once a quarter and cover a range of topics that may be useful for HR professionals and employers. If you think this is something that you would like to attend, get in touch or join our mailing list to be notified of any events of this kind. These sessions are really interesting and lead to some good, lively discussion, even if I do say so myself! It’s free to sign up and you can get yourself breakfast while you’re there – what’s not to love?

If you require a social media policy or would like us to review an existing policy, please just get in touch with the Blackadders Employment team, working in Aberdeen, Dundee, Edinburgh, Glasgow, and across Scotland.

Nicola Burns

Nicola Burns

Director of Operations

Marketing Team

+44 1382 342217

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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