The BBC will review its social media guidelines after presenter Gary Lineker was asked to step back from hosting duties for a Twitter comment on immigration policy. Should all organisations take another look at social media policies? Brigitte Weaver and George Warren list what employers should look out for.

Regardless of your thoughts about the government's proposed new immigration bill or indeed, your thoughts on Gary Lineker's thoughts on the matter, last week's very public fallout between Lineker and the BBC raised pertinent questions for businesses about their social media policies.

The BBC has decided to review its social media guidelines as it currently contains "grey areas" which are apparently responsible for this debacle. Businesses should take heed, and the stakes are high.

Of course, not all businesses have an overriding obligation to be impartial like the BBC, but inappropriate use of social media by staff, whether at work or on their own time, can pose serious and expensive risks to the bottom line.

Staff could disclose highly confidential information which could be shared and re-shared reaching millions in minutes and individuals could knowingly (or unknowingly) infringe third parties' intellectual property rights.

Alternatively, employers could find themselves liable for discriminatory or defamatory comments posted by staff and ultimately they could suffer significant reputational damage.

Social media policies

Employers should expressly state that social media policies are subject to change, and get the ball rolling with regular reviews to ensure that any guidance is clear and remains reflective of their culture.

Balancing the interests and reputation of the employer with the employee's right to private and free expression is an obvious tightrope to walk.

This can be exacerbated where employees are encouraged to use social media as part of their job, so guidance should be clear about any distinctions between business and private use of social media.

As well as keeping policies up-to-date, businesses have to keep their eye on the ball as employees require appropriate training in order to fully understand any complexities and shine a light on potential grey areas.

Training should reinforce the guidance so that anyone affected by a policy can understand the restrictions imposed on them as well as the dangers of non-compliance, such as termination (being sent off) or non-renewal of contracts (substitution).

Monitoring and reviewing

In reality, monitoring and policing policy breaches is a complex task (subject to its own data protection laws) meaning that, unless you have a team of experts continuously poring through data (in line with those laws), employers may have to rely on breaches being drawn to their attention.

As the BBC has found, it becomes difficult to move the goalposts at this stage, with any potential breach having to fall foul of the exact wording of the policy to justify taking direct action. If not, policies may end up needing to be reviewed.

Even when a breach is highlighted, and the perpetrator is dismissed, employment tribunals may only find in favour of an employer if there is a fair reason for dismissal, and the decision to dismiss is within the band of reasonable responses.

For instance, when a supermarket employee posted about hitting "customers on the back of the head with a pick-axe", the wording of the social media policy was deemed to be not clear enough for this to amount to gross misconduct.

This might have been avoided if the policy had clearly set out the types of behaviour which could lead to dismissal.

What about freelancers?

In addition to being just a football pundit and not a news broadcaster, part of Lineker's defensive line was that he is an independent freelancer and not a BBC employee.

In theory he is free to say what he likes. His views are his own. In practice does this categorisation matter for businesses who are trying to manage the ubiquitous use of social media by employees, contractors and consultants alike?

Social media policies that apply too onerously to contractors run the risk, for employers, of demonstrating control

The extent of control that an employer exercises over an individual is often indicative of the real relationship between employer and employee or self-employed independent contractor.

The more control the company can exert over someone, the more likely that they can be classed as an employee. Self-employed contractors on the other hand choose how to carry out and whether to accept or reject work. If they are not available for a certain job, then it should be offered to another contractor.

Therefore, social media policies that apply too onerously to contractors run the risk, for employers, of demonstrating control.

That said, independent contractors are normally contractually required to adhere to company policies and procedures which allows the business to regulate the freelancer's conduct.

The right to an opinion

Remember, individuals have the right to an opinion. The right to freedom of expression is enshrined in constitutional law. As employees, we are also often encouraged to exercise that right (if it benefits the business, of course). In a world of increasing corporate jargon, staff are told to "build your personal brand", "be your authentic self" and "speak your truth".

We also know that comments that are controversial, hyperbolic or close to the bone may gain more traction. Sometimes employees don't realise their opinions might be deemed to be a little (or even a lot) off side.

How are employees supposed to navigate having a voice and attracting a plethora of likes and followers with the requirement that they are "beige" enough so as not to rock the corporate boat?

Social media is a minefield, amplified by the growing blurred lines between our private and professional lives. The combination of hybrid working, growing connectivity, and a drive towards professional marketing, only make the issue more complex.

Employers can best protect themselves by ensuring that employees receive training on social media policies which are up to date, clear about the various do's and don'ts, and set out the consequences of a breach.

At the same time, employers should be aware that employees who are dismissed for breach of policy, may bring (and potentially win) a claim for unfair or wrongful dismissal if the guidelines are unclear or dismissal was not reasonable in the circumstances.

Originally published by Personnel Today.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.