Employee Activity on Social Media Damaging Business Reputation – What can Employers do?

At Digital DNA Belfast 2022, a panel of Cleaver Fulton Rankin solicitors engaged in a discussion regarding the risks of social media, explaining options and courses for action for employers when issues arise with potentially damaging personal social media activity by employees.

In a recent video widely circulated and discussed on social media, individuals are seen to be seemingly mocking the death of County Tyrone school teacher Michaela McAreavey in song; Mrs McAreavey was murdered in her hotel room in Mauritius while on honeymoon in 2011.

The video has, quite rightly, received widespread condemnation from political, religious and civic leaders.

The PSNI has commenced investigations into this incident and several individuals involved in the video have since been terminated from their employment and banned from sporting groups.

While the employees’ conduct is not directly linked, endorsed by, or representative of, their employers’ business, that does not prevent an employer taking action against the participants. An employer may do so if the conduct brings the Employer’s reputation into disrepute or constitutes a breach of the express or implied terms of employment.

If an employer is made aware of potentially harmful social media activity from an employee, the following steps can be taken to ensure the issue is sufficiently and fairly addressed:

Identify the alleged online misconduct and capture social media evidence

The incident could represent potential serious damage of reputation to an employer and may also be a breach of their Equal Opportunities Policy. If the incident took place out of normal working hours and away from the employers’ premises, it will be important to gather evidence of actual or potential loss of reputation.

Look at relevant policies and how they have been circulated

Employers should review relevant parts of the Disciplinary, Social Media, Equality and Confidentiality/Intellectual Property Policies. A well drafted policy provides an employer with a clear framework to take action against an employee. In our increasingly digital-centric World, a Social Media Policy is becoming essential for businesses – an experienced employment lawyer can help you draw up a bespoke Social Media Policy that is tailored to your business’s needs.

Determine the severity of the potential misconduct

Evidencing the video and its impact on your business will be key during the investigation process. To do this, you will need to show:

• How many views does it have? How widely circulated is it?
• Have customers seen it? Have customers or potential customers contacted you? Have they left reviews of your business on social media?
• How serious is the material?
• What is the profile of the individual in your business? Are they senior and publicly known?
• Do you work in a regulated sector? Do you have reporting obligations to your regulator?

Ensure to record evidence of the material in question

The internet is not static. The material you look at during your investigation may be deleted by the person who posted it or by the platform (as a breach of their rules). You will need to capture and keep detailed records of material online relevant to your investigation. Our Legal Technology Group solicitors recommend forensic collection (which will securely extract data and metadata) of tweets, comments and posts.

To mitigate a claim for Unfair Dismissal an Employer should take the following steps:

• Conduct a reasonable investigation;
• Follow the three-step statutory disciplinary procedure;
• Ensure that a sanction or dismissal falls within the band of reasonable responses; and
• Take good quality and timely legal advice.

At Cleaver Fulton Rankin we can support with drafting a Social Media Policy for your workplace and provide tailored employment and HR legal advice as part of our CFR-HR consultancy service. Find out more here or contact us directly for further information.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Legal Technology Group and Employment teams at Cleaver Fulton Rankin for further advice or information.