Could your social media posts cost you your job?

Any employee expressing their personal views on social media steps into a legal minefield for which there is no safe road map. Social media activity may amount to misconduct leading to a potentially fair reason for dismissal.

Know your employer’s social media policy

An essential step for employees is to get familiar with their employer’s social media policy for guidance on how they can safely use social media. Ensuring you understand and adhere to your employer’s social media policy from the start mitigates risk later down the line. If you are unsure what is acceptable check with HR.

Expressing personal opinions could be gross misconduct

Simply stating that any views expressed are personal opinions only does not get an employee out of jail free, as most standard employment contracts will allow an employer to dismiss for gross misconduct if an employee brings an employer into disrepute.

Will your social media posts cause reputational damage to your employer?

In addition, what could have seen to be acceptable topics/opinions several years ago may now be considered damaging to the employer’s reputation by association. If comments made by an employee are seen to damage the employer’s reputation, this may be a fair reason for dismissal, even if this takes place outside of working hours and on a personal device.

In Gibbins v British Council, a senior employee of the British council was judged to be fairly dismissed after posting an abusive comment on a public Facebook post about Prince George. The case highlights the consequences of expressing divisive and abusive content on social media.

However, in Higgs v Farmor’s School, the Court of Appeal has given new and important guidance on how discrimination law applies to protected beliefs. In this case, a school worker was dismissed for her gender-critical social media posts. It showed that the factors that the court should consider include, the specific way that the employee expressed and manifested their belief, as well as whether the employer’s response was proportionate. The employee won her claim on the facts, her dismissal for her posting gender critical views was found to be discriminatory. This case addresses the balance between the employee’s right to freedom of speech with the employer’s right to interfere where the views expressed might be controversial.

If there is a clear social media policy in place which the employee breaches any dismissal is likely to to be found fair by the Tribunal as long as a proper process has been followed.

Please also be aware that if you work in a regulated sector, the content of your social media posts, if ill-judged, could also land you in trouble with your sector regulator and may have a negative impact on your ability to continue in your chosen career.

If you are facing suspension, investigation or disciplinary action for any alleged misconduct (including social media posts), please do not hesitate to get in touch to see how we can assist you. David Greenhalgh is a top-ranked employment lawyer based in Bishopsgate. London.