As social media becomes more prevalent, allowing individuals to freely share their views online for all to see, it raises questions on how companies can limit what their employees publish online.

To what extent employers are allowed to monitor/control their employees’ social media?

Monitoring the use of social media can create legal issues if employers are not careful. In particular, depending on how employers monitor their employees, they could be found in breach of some human rights laws, such as the rights to privacy or freedom of expression, and other employment rights. Therefore, employers need to carefully balance their business interests against those employees’ rights.

Employers should exercise caution in taking a heavy-handed approach towards social media posts by their employees, as this is unlikely to find favour in the Employment Tribunal if the posts do not defame the employer or breach confidentiality, and if they are only read by a limited audience.

When is it reasonable for employers to initiate disciplinary action for an employee’s social media posts in the workplace?

Generally, if the social media posts impacts the company, its staff or the employee’s ability to do their job, this could be deemed a conduct issue. Employers should treat electronic behaviour in the same way as non-electronic behaviour, in line with their disciplinary procedure.

Employers must therefore differentiate between material that damages the employer’s reputation or disparages a fellow employee, and those that are merely unfavourable opinions.

If the material is not actually damaging to the employer, it is unlikely that the relationship of trust and confidence will be so seriously undermined as to permit the employer to dismiss.

Here are some examples of where it may be appropriate to take disciplinary action:

• The employee uses social media at work during times the business has made it clear such use is not permitted.
• The employee accesses criminal material using work equipment.
• The employee makes a false, defamatory, discriminatory or derogatory statement about the business or its staff .

Can employers initiate disciplinary action for an employee’s social media posts outside the workplace?

Employees can potentially be fairly dismissed for gross misconduct on the basis of their social media posts that are not directly related to their work, even where these are carried out in their own time. However, the conduct must in some way impact on the employee when they are doing the work.

Some examples include:

• Sending an offensive email from a home email account to an employee of an important customer
• Publishing a personal post that contains comments that seriously damage the business’ reputation.

Please contact us if you would like more information about the issues raised in this article or any other aspect of employment law on 029 2034 5511 or at employment@berrysmith.com