Keep It Legal.
Rachel Levine explains who the law protects in social media and how you can shield yourself as an employer and/or employee against its dangers.
Picture the scene: you have secured a lucrative new contract providing a range of health services to a large local business. Delivering this will require administrative support and additional medical team members.
You happily employ a new administrator and enter into contracts of service with a couple of local doctors you have known for years.
As the contract commences, your administrator launches a scathing attack on your client on their personal social media page due to a local contentious issue.
One of the new GP team members makes some unsavoury comments about the latest hot topic in the media and another sees these problems and raises concerns about your business on social media under the grounds of ‘whistle-blowing’.
What does the law say about these arrangements and what can you do to protect both your business and your reputation?
The rise of social media
Social media is a core part of everyday life for the vast majority of people, and the lines between personal and professional use of these apps are often blurred.
It can be used to transform patient experience. The #HelloMyNameIs campaign, started by late hospital doctor Kate Granger MBE, encourages medical professionals to introduce themselves by name to patients in their care and her recognisable name badges are now commonplace across healthcare settings.
The GMC notes that benefits of social media use can include ‘engaging the wider public in discussions about health policy, widening your professional network and facilitating patients’ access to information about health and the services available to them’.
On the other side of the same coin, however, disagreements and conflict can become more toxic and ferocious online than might ever occur face to face.
Contentious issues such as the doctors’ and nurses’ strikes, increasing perceptions of privatisation of the NHS and a hornets’ nest of other social and political issues may be hot topics for commentary but also represent legal and commercial risks.
To add to the complexity, as demonstrated in our example above, as an entrepreneurial independent practitioner, you may find you have problems relating to your own comments, the comments of your employees and of third-party contractors.
Being aware of this and the risks it represents should be a part of your risk management while growing your business.
So where is the line on appropriate social media use, and how can you ensure you are protected from any potential adverse repercussions? This is a developing area of law, as courts and tribunals try to keep pace with a rapidly changing world.
When considering law in relation to independent healthcare, it is important to ascertain the nature of the relationship between the parties.
Social media-related terms and conditions may be found in an employment contract, company policies, contracts for service and agreements with partner organisations. Each of these documents can be drafted in a multitude of ways and you will need to ensure they suit the needs of your business.
It is recommended you have a social media policy in place, either stand-alone or incorporated into an employee handbook.
This should specify company expectations for employee and worker use of social media, including the possibility of disciplinary action for conduct online that might breach employee policies.
When you start growing your team, it is necessary to confirm these policies exist and that they are applicable to all individuals working for you or on your behalf with your clients, regardless of the legal relationship between you.
It is also important to ascertain whether your clients have their own social media policies they expect your team to comply with.
A classic example is the provision of insourcing services where the client may have a general clause in the contract expecting compliance with their policies and procedures. Failing to identify and enforce this could result in your contract being terminated should your team be deemed in breach.
Another way that parameters are set is the rulings of courts and tribunals, which are vital for establishing the parameters of the law and how it relates to real-world situations.
Shooting yourself in the foot?
Social media can seem to offer a ‘safe space’ for the airing of complaints, with a community of like-minded people who might support your concerns.
In our example, this may be how your administrator felt when responding to a local issue perceived by her community to be caused by your client.
In recent rulings, the tribunals have confirmed the right of employers in certain circumstances to discipline – or in some cases dismiss – employees who have bad-mouthed them online. In one case (Crisp v Apple Retail), the employer was found to have acted fairly in dismissing an employee who had posted negative comments about the business on his Facebook page.
The employer had a clear policy outlining that comments made outside of work which affected the company’s reputation would be covered by company policy, bringing him within its scope even when posting on his personal social media platform.
That is not to say that employers have unfettered access to your team’s social media pages: underpinning this area as a whole is an individual’s fundamental right to privacy.
The excessive monitoring of employees can cause significant issues for employers under data protection laws, and companies must be able to show that data is processed fairly, there is a legitimate interest and any monitoring is proportionate and necessary in the circumstances.
Aside from airing general grievances, it may even be tempting for some people to use social media to blow the whistle on practices they identify and disagree with, as suggested in our example.
Particularly in a healthcare setting, patient safety comes first and foremost, regardless of it being a private setting, and they may feel there are strong public interest arguments for whistle-blowing via social media rather than by direct means.
However, while some protection is afforded to a whistle-blower who uses social media to raise their concerns, it is far less protective and far more difficult to satisfy the requirements than if concerns are raised through the proper channels.
The ‘social media whistle-blower’ would also be required to persuade a tribunal that their disclosure via social media was ‘reasonable’, which could be very difficult when they have bypassed their employer’s policies and posted straight to social media.
In balancing the employee’s right to privacy and the employer’s right to protect its reputation, the issue will often fall to whether the conduct in question relates to the employment relationship and the impact on the employer’s reputation, such as whether the employer was named or identifiable in the posts, as well as the potential reach of the posts.
While this is generally satisfied when employees are posting opinions or complaints specifically about the workplace, the line can be far less clear when considering personal opinions that may be fundamentally disagreeable and potentially incompatible with the person’s job.
Blurred personal and professional boundaries
One of the issues currently surrounding social media use is the increasing polarisation of views and opinions, which can be seen across the board.
As touched on above, freedom of expression is an overriding human right, protected internationally, including those views that might provoke negative reactions or cause some level of offence.
The question always being tested in this area is the extent to which employers are or should be required to respect and take account of employees’ freedom of expression and right to privacy when those opinions could be substantially offensive to certain groups of people.
There can be a fine line between sharing controversial views and breaching legal protections against discrimination. In a recent high-profile case (Forstater v CGD Europe), the tribunal erred on the side of freedom of expression.
It held that although the employee had posted ‘gender critical’ views on social media which were intentionally provocative and mocking and which people found offensive, a decision to dismiss her based on those posts was discriminatory.
Yet where those views cross over into the workplace, causing harm or affecting an employer’s business, the tribunals are less protective of the employee. In Mackereth v DWP, the claimant was a doctor who refused to refer to transgender service users by their chosen pronouns. His dismissal by his employer was found to be fair.
These examples show the difficult balance between an individual’s right to express their views on social media and how this can seep into the working relationship, at which point the risk of disciplinary action or dismissal is far greater.
When the individual is not an employee, it would be reasonable to apply a similar test to ascertain whether they have breached the terms of engagement.
Ensuring your contracts for services have clauses which allow you to terminate in cases of potential damage to your reputation is reasonable, but it may be difficult to evidence.
These contracts are less restricted than employment terms, so you may be able to resolve the issue with short notice periods or other grounds of termination.
Points for independent practitioners to watch
The examples in this article are the extreme cases, but they go some way in illustrating the current legal position in this ever-changing area.
As you grow your medical business, social media should form a core part of your people-management planning.
There are actions that can be taken should our nightmare scenario at the start of the article happen to you. But it is easier to act if you have appropriate documentation in place.
The tribunals remain keen to maintain an employee’s right to privacy and right to freedom of expression except in the most extreme of circumstances.
But as seen in these cases, caution should certainly be taken when posting online, particularly in a profession necessitating high standards such as healthcare. Here is a list of advisory points.
If you are an employer
1 As an employer, having social media policy (either a stand-alone document or as part of your employee handbook) will be the framework through which you can manage your team and set expectations.
2Ensure you and your team understand your client’s social media polices and identify any topics which should be avoided.
3Consider arranging training on the best uses of social media.
4Review your whistle-blowing procedures to avoid any team members claiming they do not how to access it or that it is ineffectual.
If you are an employee
1If you are a doctor with an employer, then familiarise yourself with your employer’s social media policy, if they have one.
2Think before you post! The standards expected of a doctor does not change because they are communicating through social media rather than face to face.
3Consider your position before posting directly about any employer online, particularly if your comments will paint them in a negative light.
4Ensure you are posting in a personal capacity unless you have been instructed or are authorised to post on behalf of any employer.
Rachel Levine (right) is a solicitor in the employment team at Hempsons