Dealing with work-related problems caused by viral videos and inappropriate posts

with a danger beware warning for all employees.

With online interactions now a dominant part of everyday life, it is only natural it can have an impact on the workplace also.

With the ability to do something inappropriate constantly at our fingertips, the risk of posting something unsuitable online is never far away.

Whether that happens inside or outside of the workplace there can be severe consequences for an employee.

There is also a risk that any improper conduct by a member of staff, in any setting, can be captured on video, posted online, and widely shared. It can have serious work-related repercussions.

And nowadays any public incident of note is likely to feature a bystander in the background, phone in hand, capturing the action on camera.

It is not unusual for such footage to subsequently be shared online and come to the attention of an unhappy employer.

Already this year we have seen reports of a female accountant being cautioned by police and sacked after a video of her actions gained traction on Facebook.

Her racist rant against a doorman was captured on camera, which led to her employer making it clear that her services were no longer required [1 cited 16.1.23]

As we have seen countless times, a social media post by an employee can also lead to both fair and unfair dismissals.

An employer can have good grounds for dismissing any employee for any social media-related act of misconduct.

The Independent Office for Police Conduct (IOPC) was forced to issue a warning to police officers to make them aware that posting or sharing offensive material on social media  is unacceptable and could lead to disciplinary action [2 cited 16.1.23].

Employee misconduct outside of the workplace has always been a troublesome issue that employers have had to deal with.

Now, the widespread use of apps such as Instagram, TikTok, Snapchat, Twitter and Facebook etc in the last decade, has added an extra dimension to the problem.

Here we take a closer look at dealing with employee misconduct on social media.

Social media policy

The best way for an employer to protect itself is to have a clear social media policy, which is communicated to all staff.

It can reduce the risk of employees acting in a way that can harm the reputation of a business and other individuals.

The policy should detail when and how social media can be used within the organisation.

It should also make clear what is considered unacceptable use and it should be linked to the disciplinary policy.

ACAS acted to advise employers to ensure they had a specific policy to deal with any allegations of social media misconduct [3 cited 16.1.23] . It followed growing concerns about the increasing number of cases employers were having to deal with.

ACAS in its comprehensive guidance published at the time said: …any policy should be clear throughout about the distinction between business and private use of social media. If it allows limited private use in the workplace, it should be clear what this means in practice.

And that: the policy should aim to ensure: employees do not feel gagged; staff and managers feel protected against online bullying; and the organisation feels confident its reputation will be guarded.

What is social media misconduct?

The law is ever evolving on this matter and there is no simple answer.

The key consideration in such cases is the impact of any alleged misconduct and effect of it on the employment relationship, work environment and employer’s reputation.

Social media misconduct can be any inappropriate behaviour or misconduct on any platform.

For example, making negative comments about an employer or colleagues or posting offensive or discriminatory content that causes others to feel bullied, alarmed or distressed. It can be any conduct that breaches the social media policy.

The following two cases focus on social media posts and provides examples of both a fair and unfair dismissal.

Fair dismissal

A machine operator with 17 years’ service was dismissed for posting negative comments on Facebook in response to a proposed relocation by her employer [4 cited 16.1.23]

She wrote: “PMSL [pissing myself laughing] bloody place I need to hurry up and sue them PMSL.”

The employee had a clean disciplinary record and the comments, linked to the employer’s computer system, were found to breach the company social media policy.

The tribunal found the employer’s decision to dismiss was within the range of reasonable responses.

Unfair dismissal

A B&Q employee aired his frustration on Facebook to a management instruction [5 cited 16.1.23]

He wrote “My place of work is beyond a f*****g joke!!,” “You know what it’s like, they reckon we can do more than one job at a time!! I have had to come home before I do something I regret!!” and “I’ll be doing some busting but it won’t be queues lmao!!” To name just a few.

The profile did not list his place of work and he was Facebook friends with about 50 colleagues.

One colleague reported the comment, which led to the employee being dismissed.

The tribunal ruled the employer followed a fair process, and although the comments breached the social media policy it does not always warrant dismissal.

Acts of misconduct linked to social media posts should be carefully considered, investigated fairly and treated in exactly the same manner as any other type of misconduct.

Shared social media footage of employee misconduct

Evidence of employee misconduct caught on camera and circulated on social media can be dealt with by an employer.

The key considerations are does the behaviour captured adversely impact on the workplace, colleagues or the individual’s ability to perform their role?

Social media videos of an employee behaving badly should always be cautiously considered, as it is not always the case that the actions will reflect badly on an employer.

If the actions in question are not linked to work or the role of an employee, then they may not be deemed worthy of disciplinary action.

Employees are entitled to a private life, but any misconduct filmed outside of work can be looked at in the same way as any other type of alleged wrongdoing outside of the workplace.

In recent times it has not been uncommon for employees to film and post TikTok videos of themselves at work, which have then been brought to the attention of an employer.

Two female paramedics were heavily criticised after posting a video of themselves twerking in the back of an ambulance https://www.lbc.co.uk/news/dancing-paramedics-tiktok-backlash/

A supermarket worker claimed he was sacked after posting a video in which he actually praises the job [6 cited 16.1.23]  . He said he was axed from his role after his video went viral.

A social media policy should make employees aware of their responsibilities regarding social media usage at work, and of how posts that are clearly linked to work will be dealt with.

Dealing with social media-related misconduct

Screenshots of inappropriate messages or a copy of a video will provide good evidence, which can be used in any disciplinary or following legal proceedings.

Any concerns an employer has should be thoroughly and fairly investigated in line with its disciplinary procedures.

The disciplinary policy should reflect the ACAS Code of Practice, which sets out fair behaviour guidelines for employers and employees [7 cited 16.1.23]

The aim of the investigation should be to establish the facts of the case, as each case will turn on its facts.

The employer should conduct a fair investigation before instigating formal disciplinary action. All options should be considered, as dismissal should not be an automatic outcome because it is not always a reasonable response to any type of social media misconduct.