The tensions between employers and employees when it comes to the use of social media have been highlighted by the BBC’s decision to take a tougher stance on what staff can and can’t do.
Tim Davie, BBC director general, has threatened to suspend employees’ Twitter accounts if they fall foul of new social media guidelines due to be published in the coming weeks, amid concern that the BBC’s reputation for impartiality is being harmed by the actions of individuals who express political opinions.
Giving evidence yesterday (29 September) to the digital, culture, media and sport select committee, Davie said: “We are going to be publishing in the next few weeks, and this is imminent, clear social media guidelines, and they will cover both news and current affairs, and beyond news and current affairs.”
“We will be able to take disciplinary action. We will be able to take people off Twitter. I know people want to see hard action on this," he added, going as far as to say the corporation would go “all the way to termination”.
Shortly after Davie issued the threat, Gary Lineker, who regularly uses his Twitter account to air his views, tweeted: “I think only Twitter can take people off Twitter." The former England striker turned football pundit followed up with another tweet yesterday afternoon in which he joked: “Think I’ve got it: no more than [six] people that work with the BBC can tweet together in a pub after 10pm.”
However, the seriousness with which the BBC and other big employers take employees’ social media use is in no doubt. A number of employment lawyers have given People Management their take on some key questions that arise in this area.
Is the BBC a special case or can any employer do this?
While the BBC is not a special case, it does have a particular focus on impartiality that makes it easier for the organisation to take a hard line on what its staff do on social media.
Lucy McLynn, partner at Bates Wells, says: “The reputational risks to an organisation like the BBC – which is both high profile and which prides itself on its impartiality – are more obvious than for many other employers. It would therefore be easier for them to argue that employee conduct on social media had been damaging to their reputation.”
Any employer can and should put in place rules governing what constitutes acceptable use of social media in and out of work, and the consequences of breaching such rules, according to Paul Kelly, partner at Blacks Solicitors.
Do these rules need to be included in employment contracts to be enforceable?
“No, quite the opposite,” says Nick Hurley, partner at Charles Russell Speechlys. “If you want to change a contract you need consent. If you keep things like email and internet use in a policy you don't have to do that because it's not part of a contract.”
The important thing is to make sure the rules are clearly specified in the company policy, agrees Alan Price, chief executive of BrightHR.
This is echoed by McLynn: “The extent… to which an employer has been clear in telling an employee that conduct on personal social media may be taken into account as a disciplinary matter is highly relevant when an employer wishes to take action in respect of that conduct.”
Do employers have the power to suspend their employees’ social media accounts?
This depends on the circumstances, says Kelly: “If the employee is tweeting for work purposes through an account owned by their employer, then it will simply be a matter of removing the employee’s access or deleting the account. However, if the account is a personal account owned by the employee then there is little the employer can do other than seek to restrict what content the employee posts.”
Price agrees that private accounts are largely beyond the reach of employers. “Informing employees that they need to suspend usage of their own, private accounts may be very difficult to enforce,” he says. Or, as Hurley puts it: “With most employees, I don’t think an employer could have a legitimate right to infringe on their personal private use of social media.”
To what extent are employees allowed to voice their own opinions online?
The starting point is that employees can say what they like in a personal capacity, according to McLynn. “If an employee voices an opinion that is detrimental to the employer, however, then this may be something that the employer can take action about, if the employer has communicated in advance their expectations about this,” she adds.
However, says Katie Fudakowski, partner at Farrer & Co, where an employer is encouraging employees to voice their own opinions online, it will be harder for them to then discipline the employee if they mistweet or say something inappropriate – “unless of course it’s so plainly offensive that the employee ought to have known better”, she says.
Under what circumstances can an employee be disciplined for their conduct online?
If employees have made posts that could be considered abusive, harassing, discriminatory, or are critical of their employer and likely to bring it into disrepute, they can face disciplinary action, Kelly says.
Rhian Radia, partner at Bishop & Sewell, comments: “Having a social media policy and guidelines with a reference in employment contracts that a breach of the policy could mean dismissal without notice is the starting point for HR professionals looking to tackle social media comments that cross the line.”
But caution is needed when dealing with breaches of policy, according to Price, who says companies need to conduct a fair investigation. “Previous cases have found that employers being made aware of the post by hacking into an employee’s private account ultimately led to unfair dismissal,” Price adds.
It is also harder for employers to make a case based on what an employee does in their personal time, says McLynn. “Conduct outside of work generally has to be of a very serious nature, and needs to impact on the employer for there to be a legitimate basis for a fair dismissal,” she says.