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Social media harm and an employer’s duty of care
15/07/2021
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Kevin Poulter
Kevin Poulter is an employment partner at Freeths

Managing your own social media accounts can sometimes feel like a full-time job, but for those who are employed to look after a company’s social media, it can sometimes feel like more than a job. In the past 10 years, as organisations have chased a “viral moment”, there has been a boom in social media-focused roles. Employees are engaged across many social media platforms and provide various services, including marketing, PR, customer help, and dealing with complaints. While these employees are often engaged on the front line of the business or representing the company they work for, they are often younger, unfamiliar with the products or services provided, and all too often unsupported by managers. 

Although it is strongly recommended for employers to consider whether a social media policy should be adopted to guide employees generally, it is essential for those whose role it is to engage through social media. As well as embodying the values of the organisation and maintaining a distinct “voice”, company representatives on social media also have to negotiate the social and political mood of their audience. This has been in the spotlight in recent years with the #MeToo and Black Lives Matter movements and more recently with responses to covid-19.

It is up to an employer to set clear parameters for content, the tone used, and how much personality a company will want an employee to share. Some of the more successful social marketers have found the right tone for their target audience, but this will vary between organisations. Being consistent, while allowing some personality to shine through is a balance that is difficult to define. Guidelines or policies will not only direct and protect the employee, but will also set out an employer’s expectations which, if not met, can be used to manage the performance of the employee over time or also be used to manage employees who bring the company into disrepute on social media platforms.

But while many of us have been working from home due to the restrictions on movement caused by covid-19, the management of social media accounts has become an isolated experience too, removing the pool of experience, knowledge, and standards that would otherwise have been readily available. It has also made it much more challenging for employees to deal with the challenges social media monitoring and management presents. It can be much more difficult for employees “to step away from work”, especially if they are being alerted to notifications and mentions outside of office hours or feel an obligation to be connected 24/7.

An employer owes a duty of care towards each of its employees. This is both a common law duty, inherent in any employment relationship, but also enhanced and extended by, among other things, the Equality Act 2010 (in respect of protected characteristics) and health and safety legislation.   

The Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999 ensure the health, safety, and welfare at work of employees, including minimising the risk of work-related mental health issues as well as injury. Employers must, therefore, do all they reasonably can to protect and support their employees’ health, safety, and physical and mental wellbeing. This is assumed to only apply to working hours and activities, but can also apply where work is “taken home” by the employee, whether that is expected or not, and work activities outside of the normal place of work.

For those who are specifically employed to monitor and manage social media accounts on behalf of companies, there is an unfortunate risk that, from time to time, they may be subject to targeted abuse from customers, clients, contacts, or unrelated third parties. Sometimes this abuse will be personal, driven by anger or hate, and, on occasion, directly relate to an employee’s appearance or ethnicity. Although an employer may not be able to prevent such comments being made, they are under an obligation to take steps to minimise the harm caused to employees. 

Each organisation should carry out a regular review of its staff and the harm they may face at work. A risk assessment should be carried out to consider how such harms may be minimised, reduced, or avoided completely. There may be filters available, opportunities to flag bad behaviour with social media providers, and, in extreme examples, it may be appropriate to make referrals to the police or regulatory authorities.

The Working Time Regulations set out the minimum expectation for appropriate break times, but where employees are facing challenging or intense periods of work, flexibility around breaks or even enforced breaks may be reasonable. Monitoring of these at peak times of concern is essential.

Many employers provide employee assistance schemes, often by telephone, to support employees with their mental health and wellbeing. Where an employer is aware of a stressful environment it may be appropriate to consider what additional support is required, including training, counselling, and opportunities for raising concerns either formally or informally.

Employers should also ensure that managers and supervisors are trained in how to identify employees who may be struggling from time to time. They must provide support and breaks where and when it is reasonable to do so and ensure that employees can perform to the best of their abilities.