In the business world of the past, no one was in any doubt of the need for caution when committing words to paper. The unyielding accountability associated with the medium was clear. But, as Anna Birtwistle warns, employees’ communications via today’s seductively informal social media channels may not be as ephemeral as we might think.
We are living in increasingly digitalised times, with the ability to communicate across the world using just the phones in our pockets. The marketing potential of this is undeniable, and many employers actively encourage their workforce to use social media and other forms of digital communication for their work. This only increased with the pandemic, which saw an explosion in the use of technological means to stay in touch while we were all remote from each other.
There is, however, a flip side to this. We have all seen stories of social media mishaps and misconduct, spanning all sectors and all levels of seniority: the disgruntled employee out to cause trouble, the unguarded online rant, the embarrassing mis-sending or leaking of confidential information. The reputational damage of this sort of behaviour to employers and employees alike is plain to see, not least because it tends to be splashed all over the internet. Social media has blurred the lines between work and private life and, unsurprisingly, businesses and individuals facing investigations into online conduct will face new challenges.
Management in an online world
It shouldn’t need to be said that care should be taken when using social media on a work device or within a professional setting. Despite this, the capacity in which social media is used – professional and personal – seems to have become of less import. Take the recent example of the Tory MP who had the whip removed1 for using Twitter to compare the COVID vaccine to the Holocaust. The social media age is defined by a lack of privacy and, crucially, there is no expiry date for online activity. Historic posts from individuals could still be evidence of prejudice or bigotry and lead to disciplinary action. Ollie Robinson, an England cricketer, was suspended2 for historical racist and sexist tweets.
In some instances, the historic posts need not even be freshly unearthed to cause issues. Often, it might be the case that posts have surfaced, to little effect, only to later crop up again and create damage. Adam Rapoport, editor of Bon Appétit magazine, posted a photo (originally taken in 2013) which showed his wife and him passing as Puerto Rican as a Halloween costume. The post had previously been shared widely on social media, but when Bon Appétit was subject to complaints around diversity and race and, in particular, its treatment of employees of colour in 2020, the picture was brought back into the public sphere. By the following day, Rapoport had resigned.
Misconduct on social media is not going anywhere. Look, for instance, at the number of recent cases surrounding conflicting opinions about gender identity. However, employers are not merely concerned with the actions of their employees on social media platforms. Work communications have been transformed since the pandemic – away from in-person meetings and email toward instant-messaging systems (Teams, Zoom). This causes a real problem for HR teams and legal counsel: how can you manage work social communication channels? The last few days of Liz Truss’s premiership were marred by leaked WhatsApp messages3 which revealed the full extent of the political infighting taking place in the Tory party. Even the Government is not immune to problems arising from new forms of communication in the workplace.
When speaking in person or via email, people feel bound by restraint and social codes. However, virtual interaction removes certain inhibitions and has led to increasing allegations of misconduct, including bullying and harassment. While business briefings and emails are often carefully checked before sending, social media posts and instant messages tend to be fired off without the same level of thought. If the word “banter” leads to a shiver down the spine of every employment lawyer, this is only matched when we learn as part of an investigation that work colleagues had a group WhatsApp chat. This was the case in a recent successful race discrimination claim brought against Aviva Rail in the Employment Tribunal, where “banter” on a team WhatsApp group was found to have violated the claimant’s dignity.
Internal investigations and litigation now regularly involve scrutiny of chats between employees on instant-messaging systems like Slack, in addition to WhatsApp. While those platforms provide great benefits in terms of speed and dynamism of communication, as well as team morale, employers would be wise to ensure that employees are clear that it remains a work channel and should be treated as such. Similarly, employees should remain vigilant to the risks of treating those informal communications as sitting outside of work, as well as the risk of messages and comments being misconstrued or perceived differently from how they were intended.
Regulating the regulated
The financial industry has been scrutinised closely for usage of WhatsApp and other private-messaging apps. Conducting business on these apps – especially via a personal profile – creates the incorrect assumption that exchanges are confidential. Recently, the FCA has begun to ramp up investigations into regulated firms and individuals, questioning usage of these messaging services, in addition to proving willing to take action in cases where these platforms have been directly used in dealmaking or the provision of investment advice. In the US, regulators have already handed out over $2 billion4 in total penalties. The pandemic catalysed this, with the birth of remote work encouraging an alternative messaging culture and leading to a breakdown of formality. In some cases, this has dangerous confidentiality implications; sensitive information is being shared through apps which are either encrypted or unmonitored. The compliance risks for businesses are clear.
Personal use of social media has become a focus for numerous other regulators. The Bar Standards Board (BSB) undertook a consultation5 of “non-professional conduct”. The report produced stated that there might be cases where the BSB would act on barristers’ private messages, particularly when the barrister in question had sent “seriously offensive private messages” on LinkedIn or had issued offensive posts victimising or mis-gendering members of the trans community. Government ministers have recently been asked6 to clarify how schools should investigate the online behaviour of prospective employees, following some applicants being asked for their social media user names, pseudonyms, and any websites they were named on or involved with. Social media guidance across various sectors is necessary – especially as the space between personal and private is increasingly liminal.
A balanced investigation
Investigations into social media conduct are common, and they must remain balanced. Businesses must ensure that policies in place are clear and concrete. Employees working in finance need clarity to ensure that business communications can be properly negotiated. In turn, this protects the employer, helping to retain confidentiality, ensure data security, and provide clear rules to refer to in cases of misconduct.
Reputation is an essential consideration when investigating social media conduct – both of the individual and of the business. Investigating an individual is an act which should not be taken lightly, given the long-lasting, potentially damaging ramifications. There is no way of reversing reputational damage if an individual is, in fact, innocent of any misconduct. Allegations which are made anonymously – an important tool to bypass the fear of repercussion – should therefore be treated with care. Of course, doing nothing is rarely an option (especially for the business). The cultural and reputational associations of inaction and ignoring allegations are a very real threat.
Navigating social media within the workplace requires businesses to be prepared. Issuing guidance in advance, particularly about communications which open up the business to potential regulatory action, will help to ensure greater accountability, as well as minimise risk. A failure to put in place clear policies on social media use can greatly restrict the ability of employers to take disciplinary action in respect of employees’ use of social media. Indeed, the recent case of an employee succeeding in an unfair dismissal case having been fired for reposting her boyfriend’s Facebook post (in which he called the employee’s boss “creepy”) hinged in large part on the fact that the Tribunal found there to have been no policies regarding social media. Workplace culture has a growing commercial value and, with far greater scrutiny than ever before, a “light-touch” approach may no longer cut it. The stakes are high, and any investigations that do occur should be handled with tact and confidentiality and involve in-depth planning and thoroughness of approach.
Preparation is protection
In 2016, a banker at Bank of America posted a racist rant on Facebook. It is reported7 that within three minutes someone contacted Bank of America to complain. Bank of America fired the employee within a few hours, but not before receiving thousands of complaints.
The wide and rapid reach of social media and other digital messaging systems can be an invaluable marketing and communications tool for businesses, but it is not without legal and reputational risk. To mitigate this, employers and employees should be aware of the reach and impact of their online presence and understand what to do if things go wrong. Clear expectations must be imposed via social media policies, which should be kept relevant via regular reviews and updates. The digital world evolves rapidly, and everyone using it should ensure that they do, too, in order to keep up.
About the Author
Anna Birtwistle is a partner at Farrer & Co. (https://www.farrer.co.uk/) An experienced employment and partnership lawyer, she advises both businesses and individuals, including partners, at the most senior levels of organisations. She is ranked in the highest band of Chambers & Partners 2022 Employment (Senior Executives).