Views are my own and not that of my employer

A look at social media in the workplace in light of the recent public dispute between Gary Lineker and the BBC.

The recent controversy regarding a social media post by BBC presenter and former footballer, Gary Lineker has shone a spotlight on social media policies, codes of conduct and freedom of speech.

Employers have been grappling with the impact of social media and how to control social media use by employees for some time. In this article we examine the role of social media in the workplace generally.

Recruitment

An increasing number of businesses have looked to social media to attract more applicants. When used correctly this can lead to reduced recruitment costs, an increase in the number of applicants and diversification of the recruitment pool, and subsequently the workplace. We have also seen employers utilise social media more and more in their screening process, reviewing the social media accounts of applicants to ensure they fit into the culture of the organisation and have a similar ethos and values.

There can be risks to employers however if social media and the information gleaned from it is used incorrectly. Social media profiles have a wide array of personal data, some of which can reveal the protected characteristics of an individual such as their age, ethnicity, sexual orientation, religious or philosophical beliefs, even information relating to a disability or health condition. Employers relying on social media posts or profiles to make recruitment decisions must be comfortable their decision is not influenced by these protected characteristics.

Political beliefs may, in certain circumstances, be considered a philosophical belief and afford an individual expressing those opinions protection under the Equality Act 2010.

A decision not to recruit an employee because of political opinions they voice on social media may be considered an act of discrimination if the employee can demonstrate:

• The belief is genuinely held;
• It is not a mere opinion or viewpoint based on the present state of information available;
• Is a belief as to a weighty and substantial aspect of human life and behaviour;
• Meets a certain level of cogency, seriousness, cohesion and importance similar to a religious or philosophical belief; and
• Worthy of respect in a democratic society, not be incompatible with human dignity or in conflict with the fundamental rights of others.

Similar discrimination risks exist when choosing where and to whom a vacancy should be advertised. Organisations have the option to strictly control their target audience, including the ability to limit to whom the adverts are targeted on the basis of factors such as age, location and gender. A policy by an organisation to advertise to and subsequently recruit from a specific pool linked to or influenced by a protected characteristic will carry a discrimination risk.

Employers using social media to advertise vacancies or screen candidates should also be mindful of the data protection implications of processing the personal data gathered via social media, which can often include special category personal data such as political opinions, racial or ethnic origins, religious beliefs, and data concerning an individual’s health or sex life. Whilst employers may have a legitimate interest in the processing of ordinary personal data, namely the screening of prospective employees, it may not meet one of the 10 conditions in Article 9 of the UK General Data Protection Regulation or Schedule 1 of the Data Protection Act 2018 which are necessary for the processing of special category data. Employers will also need to be transparent with job applicants about this processing. It is advisable for employers to seek data protection law advice before collecting and processing social media data in relation to an applicant or employee, without that individual’s consent.

Previous ICO guidance on Social Media and Recruitment predates the Data Protection Act 2018 and UKGDPR, but can be of assistance. The ICO recommended the following best practice guidelines with regard to social media screening:

• The screening should be no less intrusive than alternative approaches (such as by use of references or other checks);
• The information gathering should relate to specific information gathering rather than “general intelligence gathering”;
• Conducted as late as possible in the recruitment process;
• The prospective employee should be informed of the screening;
• The prospective employee should be allowed to make representations in respect of any adverse findings or conclusions reached during the screening.

Conduct During Employment

Social media can have positive implications for employee wellbeing and motivation, offering an avenue for organisations to publicly praise individuals and teams or celebrate particular milestones. It can help promote organisations and the work they do, whilst also making employees more accessible to the general public.

There are of course pitfalls and adverse implications for the use of social media in the workplace during employment too, as the BBC and Gary Lineker dispute recently highlighted. Employers may find employees are less productive as a result of their social media use during work. There is a risk of confidential information leaking and reputational damage to an organisation as a result of employee misconduct on social media. As well as the potential for bullying or harassment by or of employees.

When it comes to the issue of misconduct on social media by employees, employment tribunals and the Employment Appeal Tribunal have taken a fact specific, case-by-case approach to whether alleged misconduct on personal social media accounts can warrant disciplinary action by an employer. The employment tribunal and EAT has been reluctant to issue guidance to employers on social media cases, but certain key factors and themes have emerged from the case law, including:

• Whether the employer has an IT or social media policy;
• The nature and seriousness of the alleged misuse;
• Any previous warnings for similar misconduct in the past; and
• Any actual or potential damage to customer relations or the employer’s reputation as a result of the post.

Whether the conduct took place in the “course of employment” is a key consideration in these cases. The Employment Appeals Tribunal and the Court of appeal have held that there is no particular clear dividing line between conduct that is in the course of employment and conduct which is not; it is an issue to be determined on the fact of each case. Conduct on social media or outside of work will be assessed on whether there is a sufficient nexus or connection with work so as to render that conduct as being in the course of employment. Previous cases have determined:

• Derogatory posts about the employer on personal Twitter accounts used to monitor the social media accounts of different branches of a business (GAME stores in that case), was sufficiently connected to work to justify disciplinary action (dismissal in this case).
• Similarly social media posts criticising the company’s products (Apple in that particular case), in contravention of the company’s social media policy, was found to justify disciplinary action (dismissal) for breach of that particular policy and bringing the company into disrepute.

Factors an employer should consider in deciding whether to proceed with the disciplinary process include:

• The nature and severity of the comments;
• The subject matter of the comments;
• The extent of the potential or actual damage to reputation;
• Whether there was any breach of confidentiality;
• Whether the employer had a social media policy?
• Whether the activity took place during or outside working hours;
• If there are any mitigating factors.

Employees sharing messages on WhatsApp with family and friends is unlikely to be deemed to be in the course of employment or serious enough to justify disciplinary action, whilst social media posts on an account used for work and personal use by an employee, in breach of a social media policy may be considered to both be in the course of employment and capable of warranting disciplinary action.

Employment Status and Social Media Policies

A significant aspect of the recent public dispute between the BBC and Gary Lineker was the presenter’s employment status. An argument advanced by some was Mr Lineker was not an employee and therefore not subject to the social media policies of the BBC. Whilst the facts of that particular case may never become public, employers should be mindful of the employment status of the staff they wish to abide by their social media policy. It is not unusual for a company’s policies or procedures to specifically exclude particular groups such as consultants or agency workers. Whilst it is tempting to amend such policies to ensure its application to all staff within an organisation, doing so posses its own risks. Consultants may use the fact such policies apply to them in subsequent legal disputes regarding their employment status; an Employment Tribunal may use the fact such policies apply to an individual ostensibly employed as a consultant, as one of the factors to consider in determining the individual was a worker or employee and thus entitled to the associated rights and protections.

Social Media Policies

Employers without social media policies should consider introducing a social media policy. A well drafted policy will address the following key points:

• How conduct during and outside working hours will be assessed;
• What conduct is acceptable under the policy, in particular are comments linked to the organisation permissible;
• Carefully reiterate the risk of social media posts for the reputation of both employees and employers;
• Outline the consequences of breaches of the policy by linking it to the disciplinary policy.

In addition, employers should ensure staff are trained on both the policy and expectations of the employer. The policy should be monitored and updated when required and staff should receive regular refresher training to ensure it remains at the forefront of their minds.

Please contact the Employment Team for further advice on this area if required.