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As BBC director general Tim Davie announced that the BBC would be reviewing its social media “guidance” following the publicity surrounding Gary Lineker’s posts on Twitter, he acknowledged the difficulty of balancing the BBC’s commitment to impartiality with the right of presenters’ freedom of expression. Ever since the rise of social media, many employers have experienced similar tension.

Employers may wish to safeguard against:

  • Their reputation being tarnished by association with unpopular views expressed by employees on social media;
  • The risk of confidential business information being shared; or
  • If the profile of the individual is such that their comments risk being construed as the employer’s views regardless of the content.

Employers wishing to protect their interests ought to have a social media policy in place. Such a policy reminds employees that posting in a public forum could lead to disciplinary action if harmful to the employer’s organisation. Likewise, employees should be reminded that any misuse of confidential information or intellectual property on social media could breach their contract of employment.

Employers may also wish to refer to social media in any anti-bullying/harassment policies to reduce the risk of staff making offensive comments about colleagues on such platforms.

What about the right to privacy?

The case law tends to focus on the question of whether the employee could reasonably expect privacy. As such, if a social media post is shared publicly without restriction, the right to privacy is very unlikely to apply. Whereas a message to a restricted group could engage the right to privacy, depending on the nature of the group and the post.

Where the right to privacy is engaged, any disciplinary action based on the information obtained must be proportionate. It is far more likely that disciplinary action would be viewed as proportionate if the social media policy has been communicated to the employee, warning them that a breach could be viewed as misconduct.

What about the right to freedom of expression?

Although a social media post will often engage the right to freedom of expression, an employer can take disciplinary action if proportionate. When considering whether disciplinary action is proportionate, a court must seek a balance between the individual’s right to freedom of expression and the employer’s rights to protect its legitimate business interests. If an employee makes an offensive, untrue comment on social media and their employer is named on the employee’s profile, disciplinary is likely to be justified, particularly if it’s in accordance with a social media policy. However, if an employee makes a valid comment in the public interest and their employer can’t be identified, disciplinary action may not be proportionate.

Does the Equality Act 2010 apply?

Employees often state that a social media post expresses a philosophical or religious belief both protected by the Equality Act 2010 and thus any disciplinary action because of the post amounts to discrimination. Although some discrimination claims have succeeded in this scenario, some Employment Tribunals distinguish between the “belief” and “the way that the belief was manifested”, finding that the latter does not amount to discrimination. However, it will often be difficult for Employment Tribunals to make such a distinction. At any rate, an Employment Tribunal is more likely to decide that disciplinary action is due to the manner of expressing a belief, and thus not discriminatory where:

  1. The post is targeted at a specific individual, particularly if the individual is vulnerable or someone to whom the organisation owes a duty of care;
  2. The employee has previously been warned that specific people have complained to the organisation about posts because of offence taken; and/or
  3. The post is in some way threatening. For example, if it goes beyond merely expressing an opinion to inciting violence.

Our team of employment lawyers can provide advice regarding the development of your organisation’s social media policy. We can also support and advise on any disciplinary action that your organisation may need to take regarding social media posts where necessary to protect your organisation.

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.


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