The recent online firestorm ignited by Gary Lineker's tweet criticising the UK Government's proposed immigration policy has brought the importance of a well drafted social media policy into sharp focus.
The BBC suspended the services of the Match of the Day presenter pending an investigation into his alleged breach of its impartiality and social media guidelines. It became abundantly clear, however, that the BBC had lost the dressing room when fellow pundits boycotted the programme in a show of support for Lineker, and the presenter was reinstated.
This recent embroilment is a marked departure from the circumstances that usually give rise to social media controversies whereby discriminatory or hateful content is shared online by employees, rather than the condemnation of a policy viewed as being "immeasurably cruel" and reminiscent of a totalitarian regime by an independent contractor of the public service broadcaster. The key takeaway for organisations is, however, the same: a clear, well-defined and considered social media policy that is tailored to each organisation and its workforce is crucial in managing any social media furore.
How Does Social Media Case Law Typically Arise in Practice?
The Irish and UK case law in this area typically presents as unfair dismissal cases where the organisation dismisses the employee who has brought their organisation into disrepute as a result of their online social media activity. Such cases can, effectively, be divided into three distinct categories, the first two being significantly more straight-forward to handle for employers:
- Where an employee is dismissed for posting controversial material to a social media account about their employer or the company's products;
- Where an employee is dismissed for posting controversial material about their colleagues; and
- Where an employee is dismissed for posting controversial content that is unrelated to the organisation, the workplace or any colleagues, suppliers, etc.
The case law shows that even where a dismissal is procedurally fair, it can be very difficult for an employer to show that a dismissal for misuse of social media is substantively fair in the absence of a clear and explicit social media policy. The proportionally of the decision to dismiss is also heavily scrutinised.
What Are the Key Learnings From Such Cases?
- Employment contracts should include a clause which permits termination where the employee acts in a manner that brings the organisation into disrepute or otherwise prejudices its reputation.
- Services agreements with independent contractors: The Lineker debacle also raises the question as to whether services agreements with independent contractors should include such clauses. Careful consideration around the drafting would be crucial to ensure that it does not increase any potential misclassification risk.
- Social Media Policies should set out very clear guidelines about the use of social media and should include the following:
- Guidance on the company's reputation in the market and the importance of employee / contractor responsibility on social media in respect of not bringing the company into disrepute, causing any reputational damage to the organisation (including its products, workforce, leadership, etc.) or, indeed, impacting any standards or values which are integral to the organisation;
- Explicit provision that any social media content posted that brings the company into disrepute will be considered to be misconduct or gross misconduct (depending on the content) and give rise to the invocation of a disciplinary process which may result in disciplinary action, up to and including dismissal for employees or the termination of a services agreement with independent contractors; and,
- Guidance on what online behaviour or content would bring the company into disrepute, including a non-exhaustive list of examples.
- Training is key to educating a workforce on the contents of the Social Media Policy.
- Managing a disciplinary process: Where an employer finds itself in the middle of a social media firestorm, it is important that it implements any disciplinary process in accordance with its own policy and adheres to full and fair procedures.
- Consider PR / communication strategy: Managing the business risk of any fallout will likely be the most important component for an organisation so employers should engage with their internal or external PR / communications teams / brand management teams immediately. Any communication should be run by a legal advisor to ensure that it does not prejudice any subsequent processes.
Conclusion – Don’t be Caught "Ball Watching"!
Organisations are advised to take immediate action to protect themselves. Given the explosive and rapid way in which such circumstances can arise, and the potentially very damaging effect such can have on the reputation of the organisation, businesses can never be too prepared.
This article was authored by Denise Moran. Co-Authors were also, Geraldine Carr, Russell Rochford and Colum Holland. For more information please contact any of our authors, our Employment, Pensions and Benefits team or your usual contact at Matheson