The employee voice, social media and the culture wars - where to draw the line?

We are increasingly asked to advise employers on tricky issues involving employees sharing their views, often on LinkedIn or social media, on a variety of issues (political, cultural, generational and topical) that others may have opposing views on - be it other employees or third parties such as customers, clients or suppliers. Protecting employee, public and customer relations whilst also maintaining the organisation’s values and reputation is difficult to navigate. We are here to help.

When should the employers intervene?

There are lots of platforms for employees to express their views - both external such as Facebook, X (formerly Twitter), Instagram, Snapchat, TikTok, LinkedIn; and internal such as Teams chats, Slack, Hangouts, Intranet pages and internal blogs.

The closer the platform is linked to the workplace the more reasonable it is likely to be for an employer to take action in relation to employee posts. Internal instant messaging channels are the obvious example, but LinkedIn is also invariably associated with an individual’s employer, as it is a professional networking site and an employer’s name and branding is often as visible on posts as the individual’s name. In these circumstances it may well be more justifiable for employers to intervene.

This does not mean that posts on other social media sites are entirely off limits to employers. We are seeing an increased blurring of the lines between use of these platforms for personal versus business interactions. Whilst it is not advisable that employers systematically monitor employees’ social media accounts, it could be legitimate for an employer to take action in relation to posts on public social media channels - particularly if a complaint has been raised to an employer, the posts could impact on the individual’s job role or employee relations, or the posts could cause damage to the employer. An Employment Tribunal found recently that an employee posting on Facebook had “no real expectation of privacy” and that the employer had been entitled to take action in relation to these posts (see Higgs v Farmor's School).

Another recent example drawing attention to the problematic use of these platforms involved a Whatsapp group between teachers in a school in Aberdeenshire that made headlines recently after it was found to contain a number of derogatory exchanges about pupils. The incident was handled via the Council’s disciplinary procedure, on the basis that this was appropriate and proportionate in the circumstances.

So what should you be thinking about as an employer before intervening? Consider:

• How has the post come to my attention?

• What is the tone of the post?

• What is the context of the post?

• Is the post offensive, discriminatory or harassing?

• Does the post breach any of our policies? Or contradict our corporate values?

• Is the employer’s name associated with, or could it be linked to, the post? If yes, is this a post we would want to be associated with?

• Could the post cause any reputational damage? Or employee relations issues?

• Is this a topic that we as an organisation have taken a position on? Would we want to be seen to be taking a position on it?

What about conflicting protected beliefs?

Recent high profile cases have shed light on this issue particularly in respect of gender critical or religious beliefs and LGBT+ rights (see Forstater v CGD Europe and Higgs). Employers are also regularly grappling with opposing positions against a backdrop of turbulent political and economic environments and global conflicts.

The protection of religious or philosophical beliefs is very broad, and includes a lack of belief. The belief itself does not have to be “mainstream” or very widely held. Protection can cover beliefs that are controversial or that others may find offensive – unless they are so extreme that they are akin to Nazism or totalitarianism or incite the gravest of hatred or violence.

Protected characteristics are not ranked, and no one is more important or deemed to receive a higher level of protection than another. Employees’ right to hold and express their views is not unfettered and does not entitle them to harass or discriminate against others, but there may also be times when employees have to tolerate views they disagree with. Employers have a duty to protect the welfare and wellbeing of their employees and protect them from unlawful discrimination or harassment. They also have a legitimate interest in protecting their own reputation.

Employers do need to tread carefully, because disciplining or subjecting an employee to negative or unfavourable treatment for the belief itself would amount to direct discrimination. Forstater and Higgs demonstrate that in certain circumstances “manifesting” that belief, or making certain statements about the belief, could also be protected, particularly if the statements have a close connection to the belief. Employers are required to assess such statements and consider proportionality, weigh up the competing interests and act in a way that is least intrusive to the protected belief. The considerations in the bullet points in the above section should help with making this assessment.

What can employers do?

Employers are still able to act, if the circumstances require it.

The more extreme or inappropriate a social media post, the more likely it is that an employer would want to step in. It would be legitimate to investigate or raise concern if a complaint has already been made, but an employer will also often want to intervene before it gets to this stage.

Talking to the employee on an informal basis about the post may be helpful, particularly if it comes from someone they respect or trust. Respectful, open and honest discussions may help improve understanding of varying viewpoints and prevent workplace conflicts escalating. The employee may not realise the impact or possible implications of the post or comment, and may be willing to amend or take down the post. Such conversations require sensitivity.

Raising awareness more generally about the use of such platforms and the fact that certain communications may be subject to disciplinary action, or be disclosable to an Employment Tribunal or in the event of a data subject access request, may also be a useful tool to help draw attention to the potential consequences and make employees think twice before posting.

Practical Tips for taking effective action

• Be flexible - a complete zero-tolerance approach or acting in an overzealous manner is unlikely to be appropriate in most circumstances.

• Remain impartial and do not challenge an employee’s views or make them feel pressured to change them. Instead emphasise the importance of maintaining a respectful, inclusive and tolerant workplace, draw out the impact that their views or expression of beliefs may have on others and be clear what language is (and isn’t) appropriate.

• Review, create and implement policies - particularly communications and social media policies. Separating out internal communications platforms and professional sites such as LinkedIn from other social media platforms can help support any intervention. These policies should include sufficient guidance for employees sharing views on these platforms as well as making clear the circumstances in which disciplinary action may be taken.

• All workplace policies (and the way they are implemented) should emphasise respect at work and the importance of diversity, equity and inclusion. Policies and training should expressly recognise that colleagues will have conflicting views but emphasise the baseline behaviours all employees are expected to comply with.

• Effectively enforcing those policies and acting on significant breaches shows they are taken seriously.

• Advise employees to check their privacy settings on external sites. Make clear (in training, policies or in communications) that employees shouldn’t expect privacy when posting, even on their private social media accounts, and so they need to be mindful of the wider implications of all posts. Explain that it is possible, in some circumstances, for them to be subject to disciplinary action based on external posts and comments (as well as internal ones).

• Requiring employees to have a “disclaimer” that the views represent their own and not that of the employer can be helpful (particularly for sites like LinkedIn), but should not be relied on alone, particularly as the association with the employer can often be made by the reader before they get to the disclaimer.

• Update contracts of employment to include reference to relevant offences that may be considered to be gross misconduct. This will make it easier for you to take action in applicable circumstances.

• Training is important. Ensure that all employees are attending inclusivity and diversity, anti-discrimination, appropriate workplace behaviours and communications training and that such training is regularly updated and refreshed. Consider introducing training specifically for managers on topics such as culture clashes and managing conflicts in the workplace (which is something we are seeing more of).

• Create internal policies and guidance for addressing conflicts and opposing views to ensure consistency of treatment and that managers feel equipped for dealing with the issues.

Our dedicated client training team can assist with this across all levels of your organisation. This includes guiding managers through the tricky issues that can arise when staff beliefs conflict in the workplace, as well as training staff to ensure they understand when their behaviour could cross the line – both at work and on social media. To find out how our team can help you, please contact Lucy Hendley, Head of Client Training.