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The (mis)use of social media at work: Civil Service post disparaging tweet about Government

The use of social media by employers can be seen as a double-edged sword: if used correctly, it can be an invaluable tool and if mismanaged, it can potentially pose and result in significant reputational damage - in various ways.

The latter was most recently illustrated on Sunday evening, when a tweet was posted by the Civil Service from their verified Twitter account following the Government's Covid-19 daily briefing:

"Arrogant and offensive. Can you imagine having to work with these truth twisters?"

Clearly not the intended communication by the Civil Service, questions were automatically raised as to the content and purpose of the post. The tweet has since been removed, however, the initial Tweet has been viewed and screenshots have been shared significantly across social media.

On assessment this may have been the action of a hacker or a case of a disgruntled author airing their grievance albeit through improper means in light of recent news - the "Cummings" and goings.

Applying this situation broadly - what can employers do in the event an employee uses the employer's social media platform improperly to disseminate information which would be deemed inappropriate, derogatory and pose a risk of reputational damage to the employer? Is it simply a case of gross misconduct and an inevitable dismissal?

Employer response

• It is important to ensure that a dismissal on the spot is avoided at all costs. Online matters must be dealt with the same as normal offline matters. Therefore, in all circumstances, an employer should firstly investigate to avoid a knee jerk reaction. The individual in question needs to be identified and reasons for the post need to be explored. Once this is established and it is reasonable to address the issue further, an employer can then proceed to deal with the matter appropriately in the form of disciplinary action. Any sanction should be proportionate to the alleged offence.
• The employer can then deal with the matter as misconduct (or gross misconduct) as appropriate in line with their disciplinary policy and procedures. Note, it will not be sufficient to simply rely on the fact that the employee has made a derogatory comment against the employer and has breached its social media policy (if one is in place) for a dismissal to take place. The employer will need to look at the bigger picture, such as:
  - In this instance, whether the author would be classed as a whistleblower and whether the tweet falls within the remit of 'protected disclosure' in accordance with the Public Interest Disclosure Act 1998. A protected disclosure is a disclosure of wrongdoing made by an employee or worker with the reasonable belief it is in the public interest.
  - Whether the employee acted dishonestly?
  - Are there any other mitigating factors in favour of the employee?
  - What is it in fact the employee who posted the tweet or was the account hacked or made by someone else (in light of Covid-19, if the employee was working from home, was it perhaps a family member who managed to gain access and post the tweet without the knowledge of the employee?) Was the employee therefore careless in allowing access for the tweet to be then made?
  - Did the employee express remorse/has the comment been deleted?
  - Was any harm caused to the employer by the comments? For a dismissal to be fair, it must be shown that the use of social media has damaged or is likely to cause reputational harm.

An Employment Tribunal will look at the above factors and the wider circumstances in deciding on the fairness and reasonableness of a dismissal. As such, an employer will need to consider whether dismissal is reasonable in all the circumstances or perhaps a step too far before issuing a sanction.

How can an employer reduce the risks of misuse?

An employer should refer to their social media policy in order to make misuse easier to deal with. In the absence of such policy, this does not mean that the disciplinary action (dismissal or otherwise) is not fair and reasonable, in this circumstance the offending tweet has caused such reputational damage that it is unlikely the absence of any policy would make a dismissal unfair. However, employers would be in a better position to able to deal with issues that arise and, if such policy exists, and also be better prepared to defend a claim for unfair dismissal if there is subsequent challenge of a dismissal at the Employment Tribunal.

The purpose of such policy is to set out the expectations and standards required. As a general guideline, the policy would provide a framework of behaviour to be complied with (which would cover the use of company social media/private social media during work time and clearly outline not to retaliate or post disparaging comments against colleagues or the company). The policy would therefore provide a greater awareness of risk (confidentiality, data protection/privacy, defamation) to staff and outline the consequences of any breach.
Employees should also be given appropriate training to further ensure that they recognise and understand the use and misuse of social media. In addition, certain reminders should be made on policies and procedures. In this instance, it is reasonable to assume that the employee in question had underlying issues against his/her work colleagues or employer, which would be appropriate to deal with under the relevant grievance policy and procedure. To help resolve conflicts from the outset without it resulting in being in the public domain, employers should communicate clearly to employees on the working practices and measures already in place.

Employers should also consider which members of staff they give access to social media accounts to, employers should balance the need for social media engagement with the reputational risks which can occur in events like these.

Whilst this is an extreme example of misuse of social media these are common issues which employers face and as with many things prevention is the best policy and you should ensure you have a robust social media policy and employees are aware of these issues.

For more information contact James Barron in our Employment & HR department via email or phone on 0161 918 0017. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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