D-BRIEF – Employment & Pensions Blog: Controversial posts on social media

In the last week headlines have been dominated by Gary Lineker, having been suspended by the BBC due to a comment he made on his personal social media account about the Government’s asylum policy.

Whilst the BBC has strict impartiality guidelines which made Lineker’s comments particularly controversial and his employment status is that of a freelancer rather than employee, we consider the headlines have brought into focus the need for employers to consider their employees’ use of social media and revisit their policies to ensure that they are up to date.

What can employers take from this?

The case firstly serves as a reminder that the impact of a post on social media can be broad and far reaching. Whilst the interest in this case was down to the high profile nature of both Lineker and the BBC, it is a reminder for employers that comments on social media have the potential to have a much wider effect than those made in person.

Whether or not a view is controversial and may offend certain groups is another area of challenge for employers, particularly if the comments are an employee expressing beliefs that are protected and may potentially offend others who hold competing but equally protected beliefs (e.g. religion vs sexual orientation). The recent direction of case law on competing protected beliefs make clear that, to a greater degree than many employers had previously expected, Tribunals are prepared to protect the rights of employees to say things which large sections of the public or workforce may find deeply offensive.

Comments made on social media can often trigger a knee jerk reaction from employers to initiate disciplinary action on the basis that their reputation/brand is being affected.  Before taking any disciplinary action, it is important to consider whether an employee’s social media account can be linked to the employer and whether the individual has made clear that the views expressed are their own.

Social Media Policy

All employers should have a social media policy which provides guidelines and rules for employees when using social media, both inside and outside work.

It is important that a policy covers all forms of social media and makes clear that some degree of respectful expression or debate of beliefs can be acceptable, but each case will turn on its own facts. Employers will also need to remind employees that social media activity is not necessarily private, and that employers can discipline employees for conduct that breaches employee policies. The policy should also cover conduct on social media outside the workplace, as well as providing guidance to employees on the awareness of reputation and not posting anything that may bring their employer into disrepute/damage their reputation. In drafting such policies employers will need to balance the potential reputational issues against the right for employees to respectfully and lawfully express their personal opinions.

If you’d like more information or advice on any of the matters in this article please contact a member of our Employment Team.

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