In the last 20 years, the growth and popularity of social media has outstripped all possible expectations. The challenge of being an employment lawyer is that these avenues have created new conundrums to consider over the last 10 years and will do for years in the future. There has been an evolving picture in relation to many social media issues and the advances in Smartphones.

The Evolution of Social Media in the Workplace

Case law is woefully behind as social media progresses and develops into new frontiers all the time. Case law use to be based solely around Facebook and LinkedIn. However, now we see a proliferation of cases involving huge chains of communication on WhatsApp and the use of instant video publishing through TikTok.

Employers everywhere are often struggling to keep up. However, it is important to use the analogies around social media with a form of well place case law precedents.

Legal Implications

If there is a sufficient connection with work then something that happens on a person’s personal social media is likely to be the liability of the employer. Even if the errant post is not in any way connected to work, if it creates an intimidating, hostile or degrading environment then it’s highly likely that this is going to have repercussions on the workplace.

The case of Smith -v- Trafford Housing Association was decided in 2012 and was around an employee who raised a personal view on Facebook that gay marriage was an “equality too far”. He relied on his profound Christian beliefs for this comment. The employer dismissed the employee for bringing them into disrepute and making others in the workplace feel uncomfortable and upset. In this case, the Court found that this was a moderate comment, made in his own time and did not affect the reputation of the employer. It also took the view that Facebook was somewhere for personal and social information. This case hasn’t faired well through the test of time and albeit there is a balance between protected characteristics such as religion and sexual orientation, I think this may receive different treatment if it was decided more recently.

Best Practices for Managing Risks

We would suggest that there are some things that employers can do:

1. Training and education – ensuring that all employees understand their obligations in relation to equality and diversity is absolutely vital in the workplace. However, explaining how the posts can influence the workplace is really important. It is worth explaining about bullying and harassing behaviour outside of work can seep into the workplace.
2. Ensure your policies are up to date and are reviewed periodically.
3. Monitor employee’s use. You will have a policy that allows you to monitor an employee’s computer use but it is sensible to extend this to people’s personal social media, if serious allegations are raised against them. We have seen numerous cases where employees have said that they will not permit their personal social media to be used in investigations at work because of their right to private life. It is sensible therefore to have a policy around this.
4. Depending on your workplace, keep up to date with social media progresses and develops. Importantly in safeguarding environments, it is worth thinking about whether mobile phones should be allowed in the workplace and whether there should be a ban. Please also note the negative effects on mental health that are now being researched and connected, so this should be kept under review.

If you want any further information, please contact the Employment Team at Paris Smith.

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