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Social media in workplace investigations

It can be tempting for HR to police employees’ social media, but there is a better approach.

From neighbourhood Facebook communities to parents’ WhatsApp groups, we are all used to social media shadowing our lives, providing a place for cooperation and support as well as the odd disagreement, snide comment or, in the worst cases, outright abuse.

The world of employment is no different, and employees have many official and unofficial ways to communicate with managers and colleagues.

Some of these channels can feel like a virtual equivalent of an office social, replacing the old-fashioned post-work pint as a way of staying connected.

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As HR professionals and employment lawyers know, those old pub meet-ups were not without risk for the employer and nor is their virtual successor.

Indeed, it is common for people to be less restrained when sitting behind a computer screen or in front of a mobile.

Online comments can lead to disputes, grievances and disciplinaries, as well as providing a real-time commentary on the very processes they started.

Lawyers are now well versed in e-disclosure of WhatsApp threads when it comes to litigation.

Employers are having to get to grips with something similar when investigating workplace disputes – often right at the outset when screenshots of comments from one employee are used as evidence of bullying, discrimination or harassment, prompting employers to start an investigation.

Preserving material can be crucial, whether by imaging devices or conducting open-source investigations to capture activities on social media.

However, individuals may not be willing to provide devices voluntarily, meaning that evidence gathering is not always straightforward.

Even once employers have the evidence to start an investigation, issues around the use of social media in the workplace can still pose problems. Employees are now more likely to gossip in written form – again, a form which can be screenshotted or saved by others and used as evidence in internal or external procedures.

When an investigation is ongoing, this can lead to serious and complicating issues such as employees sharing information in advance of their witness meetings, or creating spin-out chats speculating on the ongoing processes, which might lead to further complaints if inappropriate, defamatory, private or confidential comments are made.

Perhaps worst of all, entire processes can be derailed if communications between parties involved undermine procedural fairness. It can seem like a never-ending business, and a robust procedural framework is therefore essential.

We cannot remove the internet or smartphones, and no one would want to do that either. However, it can be very tempting to try to police what your employees are doing in all aspects of their lives, including their social media, when it seems like every element of their life is leaking into the workplace via the same means. However, this is likely to be practically impossible and legally risky.

By assuming too much responsibility for things outside of work, the employer might in fact be increasing the chances of being found to be vicariously liable for anything that goes on.

"By assuming too much responsibility for things outside of work, the employer might be increasing the chances of being vicariously liable"

The best approach is to use your existing policies – code of conduct, IT use, equality and diversity, and anti-bullying policies – and to ensure that employees understand that the culture that employers strive to build up in person also applies to all interactions between colleagues.

This should be done alongside emphasising that employees should only communicate about work matters via accepted and approved work channels of communication.

Taking work conversations outside of the employer’s systems presents added data security and confidentiality risks, and is bad practice in any event.

Perhaps the best way to avoid social media and other digital mishaps is by ensuring all employees ask one very simple question: would you be content with your post or message appearing on the front page of the Daily Mail or being analysed by a judge in court? If the answer is no, reconsider.

Thomas Rudkin and Kathleen Heycock are partners at Farrer & Co


The full article of the above first appeared in the November/December 2022 issue of HR magazine. Subscribe today to have all our latest articles delivered right to your desk.