Social media in the age of coronavirusKathleen BADA
Social media has thrived during the coronavirus lockdown as housebound people look for a way to stay connected with the outside world. It has also however, come into its own as a powerful tool for disgruntled employees looking to air grievances that they might previously only have raised internally. Apart from the risk of serious harm this can cause to an employer’s reputation, the employee who complains via social media might also have a strong weapon to wield in a potential health and safety claim against their employer.
In the early days of the lockdown, it became common to see employees using social media to complain about their employer’s decision not to place them on furlough leave, which many employees saw as their right. Now, with employers starting to bring employees back to work, some employees are using social media to voice their fears about returning to the workplace. Many of these posts have a health and safety angle as individuals shine a light on what they perceive as their employer’s failure to adequately address the potential risks that Covid-19 poses for those returning to the workplace.
Before an employer rushes to take action against an employee for such social media posts, they would do well to remember the protection afforded to the employee by section 44 of the Employment Rights Act 1996. It protects an employee from detriment if the employee reasonably believes that the danger to their health and safety is serious and imminent, and that they are taking steps to protect themselves and other persons from harm.
Covid-19 is likely to amount to a serious and imminent risk in most workplaces. Social media posts could potentially be relied upon by an employee as evidence that they are taking protective steps. Much will depend on whether the employee could be said to have had a “reasonable belief” that the danger was “serious and imminent”.
The Government has issued substantial guidance for employers on working safely during the pandemic. However, even where an employer follows the guidance (which is varied and is derived from many different and connecting pieces of guidance and directions) diligently a Tribunal might still find the employee’s belief to be reasonable. We are living in unprecedented times and there is as yet no case law on this point to guide us.
So, what can employers do to guard against the risk of trial by social media? The prudent employer should first ensure it has complied with all the necessary health and safety measures stipulated by the Government and the HSE. It should also consult with employees or their representatives about these measures to ensure they are on board with the steps being taken.
Further individual consultation may be required with any employees who have expressed particular reservations about returning to work. This can help dispel worries and prevent them ballooning into entrenched positions. The aim is to avoid the employee feeling they have no recourse but to take public action on social media.
It’s also vital to have a social media policy clearly setting out your organisation’s expectations for employees when they use social media and to train employees on its contents. The policy should describe what the organisation considers to be unacceptable use of social media, such as posts that could harm the organisation’s reputation or that could be considered offensive. This can be tied into any sector-specific code of conduct that the organisation abides by to ensure that the policy is not impractical and self-defeating. It’s important to warn employees that they risk disciplinary sanctions (including dismissal) for breaches of the policy even if the activity was done during time when they were not at work.
LexLeyton can assist employers with advice on any particular issues arising from employees returning to the workplace. Please contact us at [link to register for a free consultation] if a free consultation to soundboard any challenges that you are experiencing would be of help.