Those active on Twitter will be familiar with the common disclaimer that ‘all views are my own and not those of my employer’.
While most understand that this disclaimer is unlikely to be a saving grace in the event of someone posting unlawful content, writing offensive remarks, or breaching an employer’s social media policy, it does invite discussion around the extent to which our publicly expressed personal views conflate with our professional profiles – and whether these two can truly be separated in an ever-expanding virtual world.
After all, the past few years of working from home have blurred the lines between our personal and professional lives both physically and virtually. Work and home are now only metres apart, and we have had an even greater reliance on social media forums such as LinkedIn or Twitter to stay connected with our networks. With this comes a responsibility to ensure compliance with our professional obligations in the social media arena.
Twitter now boasts over 200m daily users. Tweets made in a personal capacity about current affairs or day-to-day frustrations may be seen by a wider audience than immediate friends, family, and followers – including colleagues, clients and the public.
This uncapped reach has facilitated more accessible and widespread discourse on important topics such as mental health and wellbeing, and inclusion in the workplace and society. For junior members of the legal profession, engaging with dialogue of a more informal nature has helped to ‘humanise’ both senior colleagues and the online legal community as a whole. The ability to consume and share the variety of content posted online is a powerful asset for social and professional development.
Nonetheless, our freedom of expression is not wholly unfettered: legal professionals must also take care to ensure they do not fall foul of professional regulatory standards, particularly when engaging in potentially heated discussions on ‘controversial’ topics online.
The Solicitors Regulation Authority Code of Conduct requires solicitors to act with integrity and in a way that upholds public trust and confidence in the profession. It is no surprise, therefore, that the Law Society’s practice note on social media outlines that lawyers must consider who may access the material they post online, even if content is shared in a personal capacity.
Personal posts that severely undermine these standards are not immune from regulatory sanctions. The Solicitors Disciplinary Tribunal previously issued a 12-month suspension and £25,000 fine to a solicitor who posted antisemitic comments on their personal Facebook profile.
The rise of cancel culture and the power of social media to send an ill-judged tweet viral within hours pressures employers to act swiftly in disciplining employees. We witnessed this last year with Savills publicly distancing itself from the views of a then employee alleged to have tweeted racist slurs following the Euro 2020 final.
In under two clicks this individual’s professional LinkedIn profile could be found using details displayed on their personal Twitter page. It is difficult not to conflate such inflammatory views allegedly posted on an individual’s personal social media with the same person’s professional profile and reputation, even if posted outside of work and in a personal capacity.
At present there does not seem to be a one-size-fits-all approach to social media misconduct cases. Understandably, the Employment Appeal Tribunal noted the fact-sensitive nature of these cases in Game Retail Ltd v Laws UKEAT/0188/14 and opted not to set out general guidance.
The employee in Laws posted 28 tweets with bad language on their personal Twitter account. The account was not private and was followed by 65 of the employer’s retail stores. The EAT found the dismissal was potentially fair given the tweets might have caused offence to those employees or customers following the employee’s profile. This judgment exemplifies how employees are entitled to express themselves on social media – to the extent that they do not damage their employer’s reputation or risk causing offence to others.
Even comments posted to a private Facebook account may be subject to scrutiny where they bring the employer’s reputation into disrepute, as demonstrated by Crisp v Apple Retail (UK) Ltd ET/1500258/11. In Crisp, it was fair to dismiss an individual who posted negative comments about the employer’s products on their personal Facebook page, as this was in clear contravention of the company’s social media policy. The tribunal’s view was that even posts on a personal account could be easily shared with others. Therefore, it was justified and proportionate to limit the employee’s freedom of expression to protect the employer’s reputation.
By contrast, in Whitham v Club 24 Ltd ET/1810462/10, the tribunal concluded that it was unfair to dismiss an employee for posting ‘relatively minor’ derogatory comments about the workplace on a personal Facebook profile because it was unlikely that the employer’s reputation had been jeopardised by such comments. This illustrates the murky waters of expressing personal views online.
We need not be devoid of personality or discouraged from sharing our views online but should always remain mindful of the way we express such views and that our personal profiles are not exempt from professional obligations. There are increasingly blurred boundaries between our personal and professional presences on social media. With the ever-growing quantity of active social media users, the scope for social media misuse and misconduct appears to be expanding.
Farah Ali is an executive committee member of the Junior Lawyers Division and trainee solicitor at DLA Piper