Before reading these Frequently Asked Questions, please take a look at the legal disclaimer at the foot of this page.
Background
Members often contact us with queries arising from their use of social media. They are concerned that putting political and moral opinions online, negative views about an employer, or even jokes, seem increasingly to be subject to disciplinary measures. This is clearly an area of much confusion, where the boundaries between working life and personal life – between the public and private domains – are often blurred.
Comments made outside of work on social media can be a potentially fair reason to dismiss an employee. In most cases, a dismissal will be fair in law if the employee’s comments are found to have violated the employer’s rules of conduct or brought the employer into disrepute.
Misconduct and disrepute are broad terms and encompass an unpredictable range of circumstances. In our experience, while the Equality Act 2010 will not usually apply to social media use outside of work, employers will often define misconduct or disrepute with reference to the language and spirit of that Act – i.e., discrimination or harassment relating to ‘protected characteristics’.
Internal rules governing workplace and personal conduct are sometimes made very clear in company policies. However, the degree of detail and the extent of restrictions vary a great deal between workplaces and can be unclear. Social media policies are not always read by employees, but very serious issues can arise, for example where breaches of them are used as leverage by an employer to get rid of someone whom they simply no longer wish to employ.
Some of the most common types of problems reported to us could possibly be avoided if social media policies were clearer and better disseminated, or if the individuals concerned took some precautionary measures to clarify the line between their personal views and their professional profile. We give tips on this below. However, it is important to recognise that law and practice when it comes to social media are still evolving and expert legal advice may be well necessary if problems occur.
Is my employer entitled to claim that my comments on social media conflict with their values, image and reputation?
Employers can fairly dismiss an employee for conduct outside the workplace. Although these are your personal views, if you express them publicly on platforms such as Twitter or Facebook, and the views can be connected to your employer (for instance because you have listed your employer on your social media profile), the company can argue that you have brought the organisation into disrepute or otherwise breached their policies. If you post on a personal account such as Facebook and do not display your employer, but this account is linked to another, such as LinkedIn, which is used for work purposes, the employer can argue that because both accounts are associated together, the comments are a problem for the organisation. An Employment Tribunal might be likely to treat Twitter as more public than Facebook.
Are there any sensible precautions I can take to avoid problems?
The fairness of any dismissal by an employer turns on the very specific facts of the case. There is no magic formula guaranteed to prevent a stern response from an employer. The precautions below, taken individually or as a whole, cannot be relied on to grant protection against dismissal for social media use – but they may be prudent steps to take.
- Make sure you have read your employer’s social media policies.
- Check regularly the privacy settings on social networking site.
- Remove your place of employment from your Facebook and other profiles.
- Avoid linking your social media accounts, for example Facebook and LinkedIn.
- Use the phrase “in my personal opinion” to preface your comments, and clarify (e.g. in your Twitter bio) that all opinions stated are your own.
- Use an alias social media account, which is not linked to your name, email address or any of your other social media accounts which include your real name.
- Consider whether you want your co-workers to see your profile and avoid friending work colleagues.
- If you think that what you want to say may breach your employer’s social media policy, check with your HR department/line manager if what you are saying will contravene their policies.
Are my deeply held religious or political views protected in any way?
There have been encouraging cases where the courts have found that an employee was unfairly/wrongfully dismissed for posting about politics or their beliefs. Also relevant will be the consistency with which the employer applies their social media policy (in terms of the fairness of the dismissal, and also potentially in relation to discrimination). However, the law is far from established in favour of free speech.
Can liking or retweeting someone else’s tweet get me into trouble?
Potentially, yes. This may constitute conduct coming under a social media policy.
Can I protect myself by including a disclaimer in my profile or in my comment?
A tribunal would take into account whether or not there was a disclaimer such as ‘views my own’, but if the comments could still be related to the employer and could reasonably (or did) damage its reputation, then it will be likely to offer little protection.
Can comments I made in the past, prior to joining the organisation, still be treated as bringing an employer into disrepute?
Potentially, yes. It is wise to delete old social media accounts and delete your old posts. See Facebook and Twitter guides on how to do this. Apps and browser plug-ins are available to help you mass-delete social media posts, for example, TweetDelete, Social Book Post Manager and Cleaner for Instagram.
Can messages sent privately between individuals cause problems?
A message sent from one individual to another could be screenshot and either made public or shared directly with an employer. The employer might then consider the content to be problematic. Privacy protections are unlikely to apply in most cases, especially regarding open platforms like Facebook or Twitter. Even a comment in a WhatsApp chat is not private if a participant decides to share it with others.
What can I do if a problem occurs?
Contact the Free Speech Union – we can advise you and if necessary, put you in touch with a trade union that could represent you at any disciplinary hearing.
Read your employer’s social media policies and compare them with what you have been accused of.
Remember that your right to hold and manifest philosophical or religious beliefs is protected in law. Any punishment for holding such a belief is likely to be discrimination. Punishment for manifesting such a belief, though potentially justifiable, is also likely to be discrimination in many circumstances. While issuing an apology can be a useful way to settle a dispute in the right circumstances, you should not feel pressurised to apologise for holding those beliefs – doing so could constitute a concession that your belief and/or its manifestation did indeed constitute misconduct or cause disrepute.
My employer has introduced a new social media policy I don’t agree with, how can I respond?
If the former policy was part of your employment contract then it should only be varied with consultation, otherwise you may have grounds for a constructive dismissal claim. In practice this will (or should) be rare.
If the former policy was not part of your employment contract, then you are still under an implied obligation to comply with non-contractual lawful and reasonable instructions. However, an instruction might not be reasonable if it is inconsistent with the nature of the contract. Further, the new instruction may well be enforceable only if it is within the scope of the employment contract from the perspective of a reasonable employee. So, strict social media rules might be consistent with the employment contract of a BBC journalist, for instance – but might be less relevant to an organisation with a low public profile and little public engagement.
I am an employer, what can I do to protect my organisation while also being fair to my employees?
The employer, staff and unions or staff reps (if there are any) should agree the details in such a way that the employer feels its reputation is protected and employees do not feel their right to self-expression is limited. The policy should make clear the boundary between public and private use of social media and state that social media activity will only constitute misconduct if it relates to the employment relationship or the employer’s business. If the policy formed part of the employment contract, then unilaterally varying it could give rise to a constructive dismissal claim.
Can a company insist that employees report one another for things they say online?
Yes, but any policy requiring this will only be enforceable to the extent that it is a lawful and reasonable instruction. Most employers will have some legitimate interest in what their employees say online, such that breaching any rules laid down to protect that interest will be misconduct. In turn, the employer will have a legitimate interest in asking its employees to report such misconduct when they see it. However, the duty on employees to report misconduct must be lawful and reasonable in the circumstances. Both employers and employees have a duty to maintain mutual trust and confidence – a hard-line policy of enforced snitching could make working for the employer unbearable and break the relationship of trust and confidence. In addition, employers need to take steps to prevent breach of the Equality Act (and certainly must not induce it) – encouraging employees to inform on colleagues because of their beliefs could fall foul of this.
FSU Legal Disclaimer
This website is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such.
The contents of this website are for general information purposes only. The contents do not constitute any form of legal advice and should not be relied upon or treated as a substitute for specific advice relevant to particular circumstances and is not intended to be relied upon by you in making (or refraining from making) any specific decisions.
Whilst we endeavour to ensure that the information on this site is correct, no warranty, express or implied, is given by the FSU as to its accuracy and we do not accept any liability for error or omission.
Furthermore, we shall not be liable for any damage (including, without limitation, damage for loss of business or loss of profits) arising in contract, tort, statute or otherwise from the use of, or inability to use, this site or any material contained in it, or from any action or decision taken as a result of using this site or any such material.
Certain parts of this site may link to other external internet sites, and other external internet sites may link to this website. The FSU is not responsible for the content of any external internet sites.
We recommend that individuals should seek independent legal advice relating to their particular circumstances prior to taking or refraining from taking any action.