Previous misuse of social media: what can employers do?

20 Feb 2018 By Charlotte Marshall

When employees are found to have posted inappropriate content in the past, it can cause significant reputational damage – but businesses must tread carefully when trying to address the issue, says Charlotte Marshall

There has been a spate of recent cases in the media of employers having to deal with the difficult issue of historic social media misuse: Toby Young, the journalist appointed to the university regulator’s board, Phil Neville, the England Women’s football coach, and Ben Bradley, a conservative MP, have all been in trouble for offensive tweets that led to questions over their suitability for their respective roles, despite the tweets in question pre-dating these roles. Such cases can cause much reputational damage to employers but can be more difficult to deal with because of the historic nature of the posts.

It is therefore essential that organisations ensure they have a clear social media policy (with reference to it in the disciplinary policy), which deals with the issue of historic social media posts. In particular, the policy should set out examples of what is and what is not acceptable (including harassment and cyber-bullying), as well as clearly stating that social media misuse, whether historic or recent, can lead to dismissal. Employers should make sure that all employees are aware of the policy, and consider targeted training, particularly for higher-profile individuals who are more likely to come under close scrutiny.

There have been various tribunal rulings over social media misuse, and employers have been able to show a fair dismissal for such misuse during employment in some cases. When considering taking such action, organisations should look at issues such as the nature and seriousness of the misuse, how closely related it is to the employee’s work and the employer, and the actual damage to the employer. 

In the context of historic social media misuse, the posts are likely to not relate directly to the employee’s work, which will mean the nature and seriousness of the misuse and other factors – for example, whether the employer's reputation genuinely is damaged/in danger of being damaged – will have to be greater to justify the company taking action. 

Given the amount of reputational damage done in recent months to businesses by employees’ use of social media, it is no surprise that employers often want to review candidates’ social media profiles during recruitment. Although it may be perfectly lawful to look at applicants’ social media as part of the hiring process, this must be carefully managed from both a data protection and employment law perspective. 

It is important to ensure that data collated from candidates’ social media is not used in any way that could be unfair or potentially discriminatory, such as specific religious beliefs on a candidate’s social media profile informing the employer’s decision-making. The unsuccessful candidate could have grounds for a discrimination claim against the organisation.

Additionally, if collecting data from candidates’ social media profiles, employers must follow data protection laws. Any information collected during the recruitment process must be used for that purpose only and deleted once no longer needed. Although the information may be publicly available on social media sites it is also prudent (and will be compulsory when the GDPR comes into force) to advise candidates that data on social media profiles may be used in the hiring process.

As an employer, it is essential to consider why it is necessary to review candidates’ social media profiles and ensure it is based on commercial considerations as opposed to an arbitrary desire to ‘check out’ candidates. 

Employers should also consider whether it is proportionate and fair to screen candidates’ social media profiles: it may be more justifiable for senior, high-profile employees than more junior, lower-skilled employees. If companies do deem it is necessary, they should consider drafting a specific policy to assist employees involved in recruitment on screening candidates’ social media profiles.

Charlotte Marshall is a solicitor in the employment law team at Blake Morgan

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