27.11.2019

Online activism in the workplace: how should employers respond?

Advice by Kate Palmer, Associate Director of Advisory at Peninsula

Strikes, whistleblowing and social media posts from employees criticising their own companies are set to rise, according to a survey by the law firm, Herbert Smith Freehills.

The survey additionally found that 95% of companies expect a rise in the number of employees using social media such as Twitter to raise complaints and concerns about their company over the next five years. With that considerable percentage in mind, how can employers respond to online activism in their workplace?

The rise in usage of social media sites has undoubtedly led to a host of new concerns for employers. Where once workplace issues could be kept 'in house', staff now have a more significant platform to express their unfiltered views, which can help to facilitate employee activism.

The way employers respond to staff who choose to raise issues online will depend on several factors, including the existence of a social media policy. Having this policy in place will help lay down ground rules on how employees ought to conduct themselves online, including the need to refrain from harmful or derogatory comments about the organisation.

If staff disobey the rules of this policy, then employers may choose to proceed with disciplinary action. However, this depends entirely on the nature of the employees' comments and will generally only apply if their remarks can be proven to be malicious and without foundation. Alternatively, employers may prefer to refrain from disciplinary action and instead hold 'clear the air' talks with the relevant individuals. 'Clear the air' talks could help resolve any underlying issues and prevent matters from getting out of hand.

The situation will be different if the employee is using online platforms to make comments that qualify as protected disclosures, as this will be whistleblowing. For legal protections to apply for whistleblowing, the employee must be in a reasonable belief that the organisation has acted unlawfully and that this information is genuinely in the public's interest.

Employers ought to tread carefully here and consider if any complaints do qualify as a protected disclosure, as whistle-blowers are protected from detrimental treatment and may claim unfair dismissal if employers dismiss them for this reason. It does not necessarily even matter if the employee's complaint is correct, so long as they didn't make it in bad faith.

Employers must be alert to examples of online activism that are likely to qualify as protected disclosures. In these circumstances, employers must focus on resolving any particular issues without hesitation, while also encouraging staff to confide any concerns with the organisation directly in the future.

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