Social media misconduct: what employers and employees each need to get right
Workplace disputes now leave a digital trail. Group-chat comments, reposts and online reviews can be screenshotted, forwarded and produced years later. Social media is firmly part of workplace evidence.
In a conduct dismissal, a tribunal asks whether the employer genuinely believed misconduct occurred, had reasonable grounds after a reasonable investigation, and selected a reasonable response. In British Waterways Board v Smith, dismissal was upheld after an employee posted derogatory comments about supervisors and boasted about drinking while on standby. However, offensive posts do not automatically justify dismissal.
Offence is not the same as gross misconduct
The Court of Appeal’s 2025 decision in Higgs v Farmor’s School shows why context and proportionality matter. Mrs Higgs was dismissed over Facebook reposts criticising the teaching of gender and relationships. Her personal account used her maiden name and did not identify the school.
The dismissal was unlawful belief discrimination. Her language was objectionable but not grossly offensive, and there was no evidence of reputational damage or impact on pupils. Abstract reputational risk is a weak basis for dismissal.
Private accounts and private groups are rarely “private”
Closed groups, personal phones and pseudonymous accounts do not prevent disciplinary action. In Young v Royal Mail Group Ltd, an employee posted abusive, threatening messages in a union WhatsApp group. The EAT upheld his dismissal for gross misconduct and rejected his trade union activity argument.
However, employers cannot simply trawl private chats. Online monitoring must meet data-protection requirements. The Information Commissioner’s guidance requires monitoring to be justified, proportionate and usually transparent; covert monitoring should be exceptional.
What about posts by third parties?
From 30 October 2026, the Employment Rights Act 2025 will require employers to take all reasonable steps to prevent sexual harassment. It also introduces liability for harassment by customers, clients, contractors or visitors relating to any protected characteristic. One incident may suffice, and compensation may increase by up to 25% where the duty is breached.
What a policy has to do now
A policy must work in practice, not merely sit in a handbook. It should define prohibited conduct, give examples, identify behaviour capable of amounting to gross misconduct and explain when off-duty conduct has a genuine work connection. It should also cover ownership of work-related accounts and contacts, reporting routes, investigations and outcomes. Recorded, refreshed training for staff and managers is essential. Risk assessments, training records, clear reporting channels and prompt action create the evidence employers need to show they took reasonable preventative measures.
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Social media can be a minefield for employers – it is hard to know to what extent employees can be monitored, and then what to do about any posts that are found. Having a robust policy in place, providing training based upon that policy and giving careful consideration before acting on any perceived breach are key. We can provide you with clear legal advice and guidance in relation to this thorny issue.
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