Social Media at Work: Legal Risks and Responsibilities

Can employees be dismissed for social media posts? Employment law expert Jack Reynolds explains misconduct, protected beliefs & fair disciplinary procedures following two recent workplace cases involving social media use and gives tips for employers faced with such allegations.

Key points

1. Employees may face dismissal for personal social media posts if they harm the employer’s reputation.

2. Protected beliefs under the Equality Act 2010 may limit an employer’s ability to take disciplinary action.

3. Employers must follow fair procedures to avoid unfair dismissal claims.

A trainee Thames Valley police officer recently resigned after being arrested for malicious communications relating to a message sent on Instagram.

In November 2024, Akhtar Khan was halfway through her period of recognised training with Thames Valley Police when she was reported by the recipient of an Instagram message described as “threatening and vile”. This led to Khan’s arrest and subsequent resignation, with the trainee officer accepting a conditional caution for her conduct.

However, despite her resignation, on 2 April 2025, an internal misconduct hearing took place to determine the appropriate disciplinary action to be taken against her. Chief Constable Jason Hogg concluded that Khan’s actions fell below the standards required for professional behaviour and amounted to gross misconduct.

Hogg determined that the sanctions at his disposal were to either issue “no sanction” or “dismissal” (which would lead to be her being barred from the police force). He decided that no formal action should be taken in her case. Hogg commented that the message was “highly offensive” and that her actions had been “naive” and “foolish”. However, given the trainee officer was just 23 years of age, apologised promptly for her actions and resigned shortly after being interviewed, he concluded that Khan should not be barred indefinitely from working for the police force, noting; “In light of her not being represented in any way at the hearing, it would be disproportionate to dismiss the officer. In ten- or twenty-years’ time former Police Constable Khan is likely to have grown as a person and may well have developed skills and attributes that would be of use to Policing.”

Social Media and Protected Beliefs: Higgs v Farmor’s School

Earlier this year, the Court of Appeal in Higgs v Farmor’s School ruled that a teacher who was dismissed for gross misconduct in relation to Facebook posts had been directly discriminated against on the grounds of her protected belief.

Higgs had posted – but had primarily reposted others’ posts – content to her personal Facebook page which criticised “in florid and provocative language” the teaching of gender and sexuality in schools. Her online content was raised with her employer by a member of her personal Facebook group who was also a parent of a child at the school where Ms Higgs worked. The parent claimed the posts were derogatory towards members of the LGBTQ+ community.

In coming to its decision, the Court of Appeal found that there was no evidence that the posts had damaged the reputation of her employer or that she was representing the views of her employer. Importance was placed on the fact that the post was made on a personal social media account and that when doing so there was no suggestion that she had intended to bring her views into the workplace. Higgs’ dismissal in this case was deemed disproportionate and hence discriminatory.

When Can Employers Discipline Employees for Social Media Posts?

When an employee makes a post on social media which might be regarded as offensive or derogatory, employers may find themselves in a challenging position and having to determine whether the conduct is connected with their employment, or whether the views expressed are personal views one which are separate from their employment.

Many employees will have separate personal and professional social media accounts; however, the use of a personal social media account does not preclude the risk of disciplinary action by an employer. Posts on an employee’s personal social media account which damage the employer’s reputation may amount to gross misconduct and may (depending on the specific circumstances) warrant dismissal (with or without notice).

When faced with an accusation - either internally or externally – criticising or calling-out the online actions of its employees, employers must be sure to properly investigate the context of the post and also follow a fair and transparent disciplinary procedure. Not all posts, likes or shares which are potentially offensive to others are capable of amounting to gross misconduct or indeed of justifying disciplinary action. Employers need to be considerate of views that might constitute a “protected belief”, which afford protection from discrimination under the Equality Act 2010. In particular, it is unlawful to dismiss an employee simply because they have expressed a protected belief to which the employer or a third party objects. While it remains open to an employer to dismiss due to the objectionable way in which a belief is expressed, any disciplinary action taken must be proportionate and fall within the range of reasonable responses an employer is able to take. It is also worth noting that, if protected by the Equality Act 2010, the dismissal can be deemed unlawful on discriminatory grounds, even if the employee does not have the usual prerequisite two years’ service for claiming unfair dismissal.

How to Update Your Workplace Social Media Policy

To maximise both employer and employee understanding of the risks that social media poses, employers should ensure that they have up to date social media and disciplinary policies which clearly set out expectations around online behaviour (including personal online use), what behaviour may amount to misconduct, and the potential consequences if these expectations are not met. Even with such policies in place, a breach of the policy does not necessarily result in a specific disciplinary sanction – all the facts of the matter need to be considered.

With philosophical beliefs protected under the Equality Act, employers also need to ensure any action taken is proportionate and not discriminatory.

Our workplace law experts can help your business devise and draft policies which reflect your business’s culture and values.

Contact us online or call +44 (0)20 7329 9090

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