The Employment Law Blog

Social Media and the Right to Privacy

Considerations for employers and employees

We are now living in an era whereby a significant proportion of our communication is done via social media platforms such as Facebook, Twitter, Instagram and LinkedIn. For most of us, this is mainly done in our private lives away from work. But does this mean we cannot be held accountable for things we do in our private lives?

There is a general right to privacy under Article 8 of the Human Rights Act 1998 which gives the ‘right to respect for private and family life, home and correspondence’. However, as recent case law shows, employees are not always able to rely on this right if what they do in their private life has a negative effect on their employer.

The 2017 case of Lawrence v Secretary of State for Justice exemplifies this. In this case, the Claimant, a delivery manager, was dismissed because she created erotic images and published them online. Her employer said that the publishing of these images amounted to gross misconduct. The Claimant argued that this activity, carried out in her private life and on her private social media accounts, was entirely separate to her work life. The Employment Tribunal did not agree. Whilst she was not in a public facing role, she was working in a senior position and was subject to a Service Code which required high standards of behaviour and conduct. In addition, in the conduct policy, it was stated that displaying images, literature, pictures, films, videos and other items which could offend was unacceptable behaviour. The policy also stated that employees should not put themselves in a position whereby there is a conflict between her duty to her employer and her private interests.

The key thing to note here for employees is that you should be careful what you do in your private life as your actions could be deemed to have a negative effect on your employer’s reputation. This is particularly important in the context of the increasing use of social media – a powerful and easily accessible platform on which to display your opinions, images and literature.

What can employers do?

  • To reduce the risk of social media negatively affecting your reputation, you should develop a clear policy setting out what is and what is not acceptable behaviour when using social media. It should be clear that any private activity, no matter how separate it appears to be from the employee’s work could result in disciplinary action if it could reasonably be considered to have a negative impact on your reputation. That said, employers must be careful to consider the situation carefully before deciding that conduct outside of work will automatically impact on your reputation.
  • It has become increasingly common for businesses to use social media platforms such as LinkedIn, Facebook and Instagram for marketing purposes. In fact, some employees are even encouraged to use these platforms to help promote their employer’s business. Employers should ensure that the policy sets out clear and comprehensive guidelines on what employees are permitted to say about the organisation, its information and whether they should make it clear that they are acting in an authorised capacity or whether all opinions are their own.

What employees should be aware of

  • Before posting ANYTHING on social media always ask yourself – will this have a negative effect on my reputation or that of my employer? Is there a policy I could refer to which will provide guidance?

For further advice on this topic you can contact us at info@tayloremmet.co.uk or 0114 218 4000. Please note this article should only be considered as guidance and should not be taken as specific legal advice.

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