Turning up the heat on employees who tweet

In the aftermath of Danny Baker’s sacking from the BBC this week for tweeting what he later described was an “idiotic” joke about the Duke and Duchess of Sussex’s new-born son, Kirsty Cooke investigates how employers should handle their employees’ use of social media.

Despite Radio 5 Live presenter Danny Baker’s apology for tweeting an image of a couple holding hands with a chimpanzee dressed in clothes with the caption “Royal Baby leaves hospital”, the BBC quickly sacked him for what it described was “a serious error of judgment”.

Baker described the now-deleted picture as a “stupid unthinking gag” and the BBC’s decision to sack him as “a masterclass of pompous faux-gravity”.

His sacking follows Shila Iqbal’s sacking from Emmerdale for racially offensive tweets she posted six years ago.

Iqbal has since apologised and said that she meant no malice by the tweets; however, this didn’t stop her being fired from her role on the ITV soap.

With nearly 70% of the UK population using social media such as Facebook, Twitter and Instagram, it is likely that most employees have some form of online presence. These high-profile cases have reignited the debate among employers over how best to handle employees’ use – or misuse – of social media.

Shila Iqbal was axed following historical ‘racist and homophobic’ tweets.
Ian West/PA Wire/PA Images

The first key step for any employer is a pre-emptive one; ensure you have an up-to-date social media policy which has been effectively communicated to your workforce.

The policy should:

• Clearly set out examples of what constitutes appropriate and inappropriate online behaviour
• Explain the reputational damage that social media posts can cause to your business and the disciplinary action the business will take if the policy is breached
• Not too tightly define “social media” as it is a fluid concept with new players entering the game all the time
• Set guidelines for employees who use social media as part of their job, and include any restrictions that apply to what they are permitted to do or say
• Make it clear if you intend to monitor your employees’ use of social media, explain the nature and duration of any monitoring and the circumstances in which it will be done
• Make it clear that online harassment and cyber bullying will be treated as seriously as other types of bullying and harassment. This should also be specifically addressed in your disciplinary and anti-harassment and bullying policies
• Where employees make reference to their employment anywhere on their personal social media profiles, consider requiring them to include a disclaimer stating that any views they communicate are their own personal views, and not those of their employer.

Despite taking pre-emptive measures, many employers still find themselves having to take disciplinary action against employees who have used social media in an inappropriate or offensive way.

In some circumstances this may include where an employee’s social media postings do not target the business but instead focus on other employees.

Employers have a duty of care towards employees and can be held liable for the acts of employees “in the course of employment”; a concept which has been interpreted broadly by employment tribunals to extend to actions between employees outside the workplace via social media.

It will come as no surprise that when considering the appropriate disciplinary sanction for social media-related offences, there is no one-size-fits-all approach. The sanction must be proportionate to the seriousness of the behaviour. Factors to bear in mind are:

• Whether the comments were made on a social media account used for personal, rather than work-related, purposes
• Whether a reasonable reader could rationally conclude that comments consisted of, or included, statements made on the employer’s behalf
• Where the activity was conducted from and when, ie from a work or personal device and whether it occurred during, or out of, working hours
• The impact of the employee’s conduct on the business
• The employee’s position and role
• Whether the name of the employer or names of clients or colleagues or other identifying information are mentioned in the post
• Whether the employee was aware, or ought to be aware, their actions breached a social media policy
• Whether there were mitigating circumstances, such as an apology, how quickly the offensive comments were removed, and the employee’s previous disciplinary record.

In some circumstances dismissal might be appropriate. As with other dismissal cases, the employer’s decision and the process followed must fall within the band of reasonable responses open to the reasonable employer in that particular case. Therefore, taking the above factors (and any existing social media policy) into account is vital.

In addition to having a robust social media policy, employers can protect themselves further by taking steps such as carrying out regular training for employees on acceptable use of social media, with the main message being: tweet others as you would wish to be tweeted.