Brexit, Covid, Megxit… millions of people share their views online every day. A quick lunchtime tweet on Twitter, sharing or liking a post on Facebook: most people think nothing of it. Yet one ‘in-the-moment’ comment could put your job at risk.
We’ve dealt with numerous disciplinary cases where people have reacted to current affairs issues and shared their views online in what they have believed to be closed fora. It only takes one ‘friend’ or contact to take offence and share the post for it to be seen by many more people than originally intended. For work colleagues with an axe to grind or those you may have thought were friends but aren’t, social media presents a great opportunity to play you ‘offside’ or settle scores.
And how better to damage you than to attempt to get you sacked?
Given that many employers appear incapable of looking at any issue in depth and that all too often disciplinary issues are adjudicated on by junior staff whose poor judgement would embarrass many schoolchildren, it’s not hard to see how something trivial can be blown up out of all proportion. Banks we deal with do not have a glittering record in that regard.
Balancing Rights And Interests
Some comments on social media, outside of work, could lead to a fair dismissal, particularly where comments have either brought the employer into disrepute or breached the employer’s rules of conduct. To give you an example, an employee repeatedly referred to his workplace as “Dante’s Inferno” (Hell, as imagined by the poet Dante) on Facebook. Despite being asked to stop by his employer, he refused. The Employment Tribunal in that case held the dismissal to be fair because it was likely to cause damage to the employer’s reputation.
In many cases though, the situation is far from clear cut with a multitude of complex factors in play.
The legitimate interests of an employer seeking to protect its reputation, or to address allegations of harassment, have to be balanced against an individual’s human rights as set out in the Human Rights Act 1998, the relevant articles of which are:
a. Article 8 (Respect for private and family life, home and correspondence)
b. Article 9 (Freedom of thought, belief and religion)
c. Article 10 (Freedom of expression)
As I’m sure you’ve seen in the press, Piers Morgan: attributed his departure from GMB to a desire to maintain his right to freedom of speech. He said: “I believe in freedom of speech, I believe in the right to be allowed to have an opinion. If people want to believe Meghan Markle, that’s entirely their right.” Many thousands of people criticised Morgan for the views he expressed, but equally many thousands came out in support. Was it right for Morgan to lose his job? It’s a question that divides people.
Piers Morgan’s case is exceptional given his prominence. But in most cases, employers are in a position of relative power compared to employees and many employers find it all too easy to ignore the rights of employees, in favour of what they perceive to be their own. Or they simply lack the understanding or desire to carry out a detailed or nuanced analysis which goes beyond asking the question: ‘Has a policy been breached? If ‘yes’, dismiss’.
If you’re a BTU member we will ensure that Lloyds behaves reasonably: if it doesn’t we will hold the Bank to account. In 2016, the Union won an important Employment Tribunal case for a member dismissed from Lloyds Bank for a comment she’d made on Twitter. The Judge found her dismissal to be unfair and the Bank was forced to rectify the situation. No cases have got to that stage since.
However, there is a new threat to free speech on the horizon.
Lloyds Bank Guidance Flawed
The Bank’s new Social Media Guidance is a flawed document for a number of reasons:
1. The guidance is vague, superficial and entirely subjective. Presumably this is deliberate so the Bank can use ambiguity in the guidance to its own advantage when condemning staff for their actions on social media.
2. The guidance places employees on notice that they should assume that anything written could be read by a colleague, manager, competitor, customer and that ‘personal activity’ or ‘expression’ can ‘impact upon the work environment’. The effect of this wording is to remove any legitimate expectation of privacy held by staff, so that the full weight of the policy can be applied if necessary.
3. The guidance refers to an ‘inclusive business’. How inclusive? On what basis? Inclusive of whom? Which ideas are promoted, and which are discouraged and/or worthy of discipline? At a superficial level, this is easy to interpret as politeness, but unfortunately it runs deeper than this in practice. It is entirely foreseeable that someone who is offended by a post or any item of shared content may vexatiously allege that an employee has breached this policy. The guidance needs to be more specific.
However, the worst line reads: “Can anyone read what you have posted without being offended? If not, then do not post it. You represent more than just yourself”. This is problematic for a number of reasons. (You may note that the above sentence is directive – it says ‘do not’)
In reality, almost anyone could be offended by almost anything, if they wanted to be. The net effect of Lloyds’s statement is that no one should post anything about anything if someone could be offended. That’s an obvious breach of someone’s right to freedom of speech and clearly goes a step too far. It is likely to be viewed as disproportionate by an Employment Tribunal.
The Bank has maximised its potential leverage by designating all employees as ambassadors, without making any distinction for the seniority or role of employees. Whilst each case turns on its own facts, the reality is that any reputational risk arising from comments made by a bank cashier will almost certainly be significantly less than for the same comments made by a high-profile board member. The guidance doesn’t acknowledge that. Nor does the guidance provide any idea as to how Lloyds might contextualise any comments that are made.
The problematic nature of Lloyd’s guidance is further highlighted by the fact that there are a number of lawful and legitimate views, protected in both human rights and discrimination law, which might be deemed by colleagues, ‘Facebook friends’ or some unknown third party to be ‘offensive’. Here are two examples:
1) A football fan who works at Lloyds comments on Facebook that he disagrees with the taking the knee gesture at the beginning of football matches. He states that he ‘preferred the Kick It Out anti-racism campaign which was less controversial than the BLM group’. A BAME colleague submits a copy of the comment, citing racial harassment.
2) A Lloyds employee posts a graphic on her protected Instagram account documenting the increase in the number of Arctic polar bears. She comments that “Believers in man-made climate change are mistaken, the facts don’t fit the theory!” An environmentally conscious former friend who banks with Lloyds and has followed her former friend on Instagram since before she protected the account, takes a screen shot and posts the graphic and comments, tagging in Lloyds social media platforms asking: “Is this acceptable from a Lloyds employee? What about your commitment to the environment? As this is circulated on social media, a colleague at Lloyds who is passionate about climate change sees this post and raises a grievance on the grounds of her philosophical belief in climate change”.
It’s difficult to see under the current Lloyds Bank social media guidance, how a protected belief, moderately and lawfully expressed, is not easily deemed to be a conduct issue in the face of an offended third party. Organisations need to recognise and appropriately manage this contradiction; the Lloyds Bank guidance fails to do that. Beyond subjective offence, the guidance is silent on how any complaints will be assessed. To be blunt, the guidance is not fit for purpose.
Social media are now deeply embedded in our society; most of us use them in some capacity.
If you do choose to use social media, here’s some practical advice which will help to reduce the risk of something going wrong:
1. When sharing your views online, begin with: ‘In my opinion’, to demonstrate that they are your views and not your employer’s.
2. Check your privacy settings and set them to maximum privacy. This won’t eliminate the risk of something you say being shared more widely than intended, but it will help. Any comment you make, either publicly or privately, can be captured via screenshot and shared so keep that in mind.
3. Do not state the name of your employer on social media or put up posts that could link you back to your employer.
4. Avoid linking your social media accounts, particularly to LinkedIn. If you use Linkedin you probably can and will be tracked to an employer.
5. Think twice about whether it’s appropriate to ‘like’ or comment on someone else’s post; sometimes such an act can cause as many problems as making the comments yourself.
6. Before you press send, ask yourself the question, would you be happy to post this in a national newspaper? If not, why not?
7. Avoid posting any material or making comments that personally target an individual.
8. Don’t make disparaging or derogatory comments about Lloyds Banking Group via social media.
9. Never engage in ‘banter’ related to protected characteristics. It’s against the law to discriminate against someone because of a protected characteristic. There are 9 in total: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
10. Old social media comments (made prior to employment) can also cause problems, so consider deleting them.
11. In your account biography, include a line which says that all opinions are your own.
12. Think very carefully about whether you ‘friend’ work colleagues; it’s not surprising that most social media issues reach employers via colleagues who report matters. This is often the cause of many issues. On Facebook, you can create different levels of access for different groups if necessary.
13. Consider creating specific accounts for interacting with colleagues on work related matters with appropriate handles @Jane_Smith_Financial_Adviser, which might help bring a degree of separation.
14. Evaluate and plan how you might use different platforms for different audiences and messages – Twitter / Instagram / Facebook and LinkedIn have different audiences and different expectations.
15. You could also consider using social media accounts that are not linked to your name or email address.
16. Remember that the conduct, management and content of posts on work-related WhatsApp groups will be treated in the same way as an email to colleagues. It’s important to remember this, despite the informality of the platform and its increased use.
17. If you want to post something but you’re not sure whether it might cause a problem you can always contact us first. The Advice Team are available on 01234 262868 (choose Option 1).
The Importance Of Free Speech
The Universal Declaration Of Human Rights adopted by the United Nations says: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Freedom of speech is a fundamental right in a free society and it often comes up in cases in which we represent members. It is a right which is easily dismissed by employers where there is no effective trade union in place to protect it.
Members with an interest in free speech may be interested in the work of the Free Speech Union, which was established last year with the purpose of protecting the speech rights of its members. To find out more, click here.