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My Thoughts, My Spare Time – Can Behaviour On Social Media Get Me In Trouble At Work?

Whether it’s checking into a swanky restaurant or a furious exchange over Facebook between meetings, social media has become an integral part of many of our lives.

As the findings of a study recently revealed, the average Briton checks their mobile phone every 12 minutes, so it will come as no surprise that posting for a reaction has become almost an addiction for many.

But surely, if done out of work hours and from a personal account, there’s no way you could find yourself in trouble with your employer?

Or is there?

The distinction between work life and home life has become blurred, thanks to our constant public profile on social media.

Two years ago, a survey by Privilege Home Insurance revealed that eight per cent of 18-34 year olds had been disciplined or sacked for inappropriate social media posts.

Some workers post comments without considering that their colleagues may see them. Others, believed that what they post outside of work on their own social media account is unrelated to their work life.

Here, we take you through how to limit risk when it comes to your behaviour on social media and what to do if your employer accuses you of inappropriate behavior online.

What Is The Law Surrounding Our Behaviour on Social Media?

There are no concrete laws about what is acceptable behaviour on social media. Instead, the law requires an employer to take a fair and reasonable response to disciplining workers for social media comments.

Case law has established that dismissal on the grounds of conduct will only be fair if at the time of dismissal:

  • The employer believed the employee to be guilty of misconduct
  • The employer had reasonable grounds for believing that the employee was guilty of that misconduct.
  • At the time the employer formed that belief, it had carried out as much investigation as was reasonable in the circumstances.

My Social Media Isn’t Linked to My Profession – How Can I Get in Trouble for What I Post?

An employer cannot normally take action against its employees for what they post on social media, provided their activities do not damage the employer's reputation.

If there is no link to your profession, this is likely to reduce the reputational risk on your employer. However, you may have colleagues, clients or friends on social media who will be able to link your opinions and comments to your employer. This means reputational risk can never be discounted. In addition, your opinions may cause offence to your colleagues who may decide to report the opinions to HR.

What Is Reputational Risk?

It’s a risk of loss resulting from damages to an organisation’s reputation. A loss of reputation is likely to damage an organisation’s value.

In general the law provides that employers should not take a disproportionate view of the damage, or potential damage, to their reputation, merely because conduct that does not put them in the best light comes into the public arena. The key factor is often the impact of the social media comment on the business. It is not enough that an employee’s action might cause reputational damage.

Recent cases highlight that the risks must be tangible and real. For example, negative comments made by a worker about the products the employer makes could cause reputational damage. Similarly, a derogatory, offensive or discriminatory remark posted by a worker could cause damage to the values, ethics and reputation of the employer.

If my Employer Has no Social Media Policy, Can I Post What I Like Online?

Most employers will have a social media policy to provide workers with guidance on corporate image and reputation as well as expectations as regards to use of social media. If so, you should familiarise yourself with the policy along with other relevant policies such as a bullying and harassment policy (for offensive comments), an equality policy (for discriminatory comments) and a disciplinary policy.

If your employer does not have a social media policy, this does not mean you can do whatever you like online. While a policy is likely to make it easier for an employer to discipline a worker for breaches of the policy, it’s not required to take disciplinary action. The main points to consider are whether the worker was aware what the likely result of any transgression would be on the employer and the content of the comment.

I’m Facing a Disciplinary For an Inappropriate Social Media Post. How Can I Support my Case?

It is important that any response should be proportionate and employers should not rush to act. Ensure your employer fully investigates the circumstances including when the offending comment was made - was it public? What were the social media account’s privacy settings? Who might have seen the post? And what effect or repercussion has it had, or could have had?

If you were under significant stress at the time, or had a medical condition that contributed to the decision to post the comment on social media, point this out to your employer.

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