Social media and the workplace: top tips for UK employers to get the balance right

Source: Withers Worldwide

We live in a time in which people wish to express their views publicly about a wide range of subjects, some of them contentious. Increasingly they are seeking the freedom to do so and are resorting to the employment tribunal when employers try to restrict this freedom. 

At our recent employment masterclass, we explored what this means for employers and how they should be responding. Here are the takeaways from the session:

1. Case law over the past few years has brought a wide range of beliefs within the scope of protection under the Equality Act, meaning that employers risk claims under the act if they fail to recognise a protected belief. Sometimes erring on the side of caution will be sensible.
2. On the other side of the equation are the employees who object to the way that certain beliefs have been expressed and claim, for example, that they have been subjected to discrimination or harassment as a result of being subjected to their colleagues’ views.
3. Alongside these developments, the use of social media for the expression of views of all kinds, and in all manner of ways, has become mainstream. This has made it more difficult to draw a clear distinction between private conduct and conduct relevant to the workplace. It has also increased the range of ways in which an employer might be liable for an employee’s conduct.
4. The Courts are showing an increasing willingness to protect freedom of expression. It is no longer possible for employers simply to ban certain kinds of expression or take a strict attitude, without taking all the circumstances into account.
   
   Employers should revisit social media policies to make sure that the language they adopt reflects the greater tolerance provided for in the recent cases.
5. Employers are still entitled to expect their staff to be respectful to each other, but this needs to be balanced against making it possible for people to express their beliefs in a reasonable and responsible way.
6. Employers also need to remember their other duties towards their staff – including the duty to take reasonable steps to prevent sexual harassment, which came into effect in October 2024. This could include sexual harassment by means of comments on social media.
   
   Employers should make sure that their policy wording covers this risk by referring specifically to comments that might amount to sexual harassment. They also need to be prepared to engage with sexual harassment of their staff by third parties on social media, which is covered by the duty. Techniques such as changing privacy settings or blocking technology may be helpful.
7. The views of staff expressed on social media, may also cause an adverse reaction from third parties such as clients, customers or investors.
   
   Employers should avoid a knee jerk reaction and, for example, think through the likely PR consequences of a public declaration of dissociation from the views concerned. Demanding that the individual remove the material may be tempting but also has to be weighed carefully.
8. There is still an important distinction between holding a belief that is protected and expressing that belief, but not all forms of expression are prohibited. Following guidance from the Court of Appeal, in a situation in which an employer receives complaints, or sees or hears something they feel is problematic, employers need to weigh up:

• Whether the material in question could be a manifestation of a protected belief;
  
• Where the material is situated – on a private Facebook page, on LinkedIn, on the company X account, on a blog maintained by the employee outside work?
  
• Who is it shared with or read by – personal friends, colleagues, clients, third parties?
  
• Is it possible to tell that the employee has a connection to the employer?
  
• What does the material say? Is it expressed in a respectful way or does it contain insults, threats or grossly offensive language? Usually, it will be somewhere in between. Is it something to which objection could justifiably be taken?
  
• If the employer is tempted to say that its reputation could be damaged by material on social media, is that position really justified given the other factors involved?
  
• Is there anything in the material that could reasonably cause colleagues to feel intimidated, humiliated, threatened, degraded or offended?
  
• Even if the material has caused offence or complaints, what is a proportionate way of dealing with the issue? A warning, training or guidance might be a more proportionate response than dismissal.

If you have any questions or would like any further advice on the issues raised in this note, please contact a member of our employment team.