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Stars’ social media backlash a warning for employers
04/03/2021
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John VDLD
John van der Luit-Drummond is editor-in-chief of International Employment Lawyer

Love it or hate it, social media is now interwoven into the fabric of modern life. For businesses, it is a key tool to build and strengthen a brand and for interacting with customers. It is also a veritable minefield where an employee’s ill-judged tweet can severely damage a company’s reputation.

The risk of damage is as significant whether the offending post comes from the corporate’s or the employee’s accounts. As an example, in February, Gina Carano was dropped from her role as “Cara Dune” on The Mandalorian after her de facto employer, Lucasfilm, described posts from the actor as “abhorrent and unacceptable”.

The now-deleted Instagram story, which implied being a Republican today was equivalent to being Jewish during the Holocaust, was merely the latest in a string of controversial posts from the former MMA fighter. On Twitter she also mocked mask-wearing to fight covid-19 and falsely suggested voter fraud was prevalent in 2020’s US presidential election. Under intense pressure from fans, Lucasfilm announced it had “no plan” to employ her in the future.

Carano is not the only high-profile individual to cause headaches for an organisation they work for. In an open letter signed by almost 1,200 television industry workers, Good Morning Britain host Piers Morgan was accused of bullying a former crew member on Twitter. Noting Morgan is a freelance presenter, ITV said it “could not control his output on social media” and that he is “well known for engaging in robust, heated exchanges” on the platform.

In another recent example, Channel 4 announced it will no longer work with SAS: Who Dares Wins’ Ant Middleton as the former soldier’s “personal conduct” does not “align” with the channel’s views and values. Last year, the presenter was criticised after labelling Black Lives Matter protesters “absolute scum” and telling his thousands of followers to not “be a sheep” when taking precautions against the novel coronavirus.

Less high-profile examples include a pastoral administrator who was dismissed from a school for writing on Facebook that gender fluidity was a “perverted vision”. Meanwhile, barrister Jon Holbrook was removed from his chambers after referring to a schoolgirl on Twitter as a “stroppy teenager of colour”.

Although the employment status of these individuals vary between jurisdictions, generally, employers can learn much from these stories.

‘Cancel culture’ can work in both directions, but it is usually those with extreme and outspoken views who are most affected

“Employees, and those representing – or who may appear to represent – an organisation should be informed of what is expected of them and, so far as is possible, what the consequences of stepping outside of those expectations may be,” advises Kevin Poulter, an employment partner at Freeths in London and an expert in social media issues in the workplace.

As Poulter explains, it is much easier to control a message if employees know what their obligations and responsibilities are before anything goes wrong. “A wordy policy is unlikely to be read and demands rather than guidance are less likely to be respected. Including examples and sensible reasoning for why some controls are needed are much more likely to succeed. As with many things, prevention is better, and less costly, than cure,” he adds.

“It is also apparent that tolerance of bullying, harassment, and ‘trolling’ on social media has reached its capacity. ‘Cancel culture’ can work in both directions, but it is usually those with extreme and outspoken views who are most affected and, potentially, their employers, stakeholders, or associates. Although social media has been a place of sanctuary and community for many during lockdown, it has also forced us to look more closely at the harms that it can cause to mental health as well as reputations.”

Given the proliferation of social media sites and their ever-increasing influence on society, employers might feel that implementing and policing guidelines is particularly onerous or, indeed, subject to challenge from employees on the grounds of free speech.

“Like most policies, a social media policy should go no further than it needs to and be easier to comply with than to work around. However, an employer should not assume or place its trust in common sense being exercised and setting out some basic expectations is to be encouraged,” says Poulter.

“Social media policies should not be overly restrictive, so as to infringe any basic human rights, but where an employee is associated with an employer, or links themselves with their employer on social media or elsewhere, there is and should be an elevated standard of responsibility and, consequently, acceptance of culpability.”

“Misuse” of social media that is likely to bring an organisation into disrepute should be included in examples of employee misconduct, providing an employer with a clear right to take disciplinary action, Poulter adds. “The severity of that action will depend on the circumstances of each situation, including past warnings, the role, seniority of the employee, and the potential consequences of their actions.”

The recent examples of Carano, Morgan, and Middleton suggest latitude might often be given to more senior employees but this would be a mistake, according to Poulter. “Social media guidance and policies should not be a ‘one size fits all’ for every organisation or every type of employee,” he says. “Employer expectations of high-profile, senior, and key employees are much greater than junior and backroom staff. That’s not to say that there shouldn’t be a minimum standard and a fair and reasonable policy in place for all staff, but an enhanced standard where they are relevant and reasonable.”

Senior employees will typically be subject to a greater level of scrutiny and elevated expectations

Where employees are encouraged or required to use social media as part of their roles, Poulter advocates for specific and even contractual expectations and obligations to be set out. “Senior employees will typically be subject to a greater level of scrutiny and elevated expectations, but they should also be told and reminded of this regularly. Training may also be appropriate, especially for those tasked with speaking on behalf of a company,” he adds.

In addition, Poulter argues that social media policies should not sit in isolation, but form part of a suite of clear and reasoned policies and guidance to address a company’s expectations and requirements. “It impacts on the IT and reasonable use policy, equal opportunities and dignity at work, disciplinary and grievance and broader communications and PR strategies,” he says.

While it may not be best practice for an employer to institute a one-size-fits-all policy for staff, regardless of seniority, what should it do about social media use across multiple jurisdictions?

“It is likely that most companies will have shared values and a core message across all jurisdictions,” replies Poulter. “Social media regulation does differ around the world, so care needs to be taken to protect the business from inappropriate comments or behaviour online. A basic universal guide might be sensible, together with specific guidance for each jurisdiction that the employee operates in. These too should be regularly reviewed and sufficiently flexible to allow them to evolve should they need to.”

To avoid mistakes, Poulter encourages employers to provide staff specifically tasked with speaking as, or on behalf of, a company with special training and guidance to ensure they act in a manner consistent with its directions, messaging, and communications. But what about when employees go rogue?

“There have been multiple examples of ‘rogue employees’ taking over a business social media account, with little or no awareness of management until it has gone viral,” he says. “For those who are responsible for company social media accounts, ensuring that passwords are known by managers and kept up to date is essential and in urgent situations allows them the opportunity to suspend, edit, or even close down those accounts.”  

Employees should also be encouraged to self-regulate their conduct online as well as that of colleagues, suggests Poulter, but he also warns employers against too heavy a hand where honest mistakes may be concerned.

“By taking an educational rather than draconian view of social media misuse and missteps, creating an environment to learn from mistakes rather than fear repercussions, and understanding the true impact of damage on social media is critical to creating a positive message where employees can be successful ambassadors for their employer, not silenced through fear.”