What are the rules around social media for doctors and other primary care health professionals? Join Robert McCartney and Rachel Levine for the latest episode of our primary care podcast, where they navigate the complex and ever-evolving issue of social media uses and abuses in employment law.

In this episode they discuss:

00:16 - Introduction

01:00 - The evolving nature of social media

02:06 - Which social media platforms cause the biggest issues?

03:44 - Social media and the law

04:54 - Tribunal scenarios and outcomes

06:54 - Cyber bullying and the law

08:02 - Personal opinion or work issue?

11:13 - Different standards for different professions

13:12 - Data protection and company monitoring

15:35 - Processes for practice managers

19:10 - Freedom of expression

Welcome to the latest in Hempsons' podcasts on topics that impact on general practice and today we will be talking about social media. My name is Robert McCartney. I'm an associate in the GP team. We specialize in all things contractual and partnership related to running your practice and with PCNs.

I'm joined today by Rachel Levine from the employment team who is here to kind of discuss with us some of the topics related to social media, particularly around managing your staff with social media and also managing your partners with social media as well.

Hi Robert, thank you. Yeah, so I am a solicitor in the employment team. We cover all aspects of the employment relationship. But of course, this is quite a big one at the moment. It's a pretty big area, a lot of high profile situations going on. So social media is something that almost everyone uses nowadays. There's a lot of blurred lines. You might now expect to see people using social media and Twitter for work related reasons a lot more than you may have before, so it's up to us to interpret the law and advise clients on the situations that they find themselves in to protect themselves and to ensure that their employment relationships are working correctly.

So, social media is a kind of generic term that covers an awful lot. And for someone like me, who's not the best when it comes to being online, um, I think I have a couple of accounts for different things that I almost never look at. The only thing I think I touch on fairly regularly is LinkedIn, even then it's mostly just to talk about these podcasts and webinars. What kind of areas are we seeing that have been particularly popular and what type of platforms are causing particular topics at the moment?

Yeah, so the big one is Twitter. I'd say there's a lot of commentary on Twitter it tends to be the place where people go to sort of vent or give their views. We see a lot of things on Facebook still: comments and that can particularly come about in terms of relationships between colleagues. So comments made on on Facebook that are sort of derogatory or aggressive or or harassing.

We see we can see those come to us as well. We're even seeing cases come through now of WhatsApp. It's increasingly used through workplaces. Most workplaces, I would say, probably use WhatsApp to some degree.

It's true.

Whether it's, yeah, whether it's, uh, you know, authorised by the workplace or not, it just tends to be the go to way, especially after, you know, after we've all been working from home and had more, more hybrid working arrangements. Uh, and we are starting to see that come through in terms of comments made on, on WhatsApp or in WhatsApp groups, particularly, uh, that are then brought to the attention of an employer.

So I guess social media, kind of the definition is expanding slightly to communication tools that have kind of more than one audience members?

Yeah, yeah, I'd say so. I mean, it's more than your private message with one person, but it can be anything up to a completely public account, but just because something's a private account doesn't mean it's out of the realm of what we can consider and what the tribunals will look at and what the law does consider relevant.

Okay, so the law. It's an interesting area with social media 'cause there's not a kind of defined piece of legislation about social media. There's a lot of bits to it. How do you kind of see the framework for the laws that govern social media?

Yeah. No, it's, it's absolutely not one law. Um, unfortunately... it would make our life a lot easier, but it's, uh, yeah, the law is, it's very varied. We don't have one set, uh, legal precedent that we can go through like a big book that we, we find all our rules and regulations in. In fact, in employment law, we tend to look a lot towards tribunal rulings to establish precedents, look at trends. We see tribunal rulings. interpreting the nuances of everyday life.

So things will happen in the workplace, uh, and then eventually they will be, you know, something, something will get challenged, it will go up to a tribunal, the tribunal will rule, it will interpret those sort of everyday situations, and then we receive those rulings and we use them to establish trends and precedents and things like that.

So actually the courts and the tribunals are a huge part of how law develops within employment.

And with social media being so new but also so varied, there's an awful lot of kind of different scenarios that could be very, very similar, but result in different outcomes.

Yeah, absolutely. And it's, it's very much a case by case basis in, in this area. So we see a lot of cases with really similar facts, but they're distinguished just on, you know, one or two points. And it will often be a case of looking at whether the, the impact of a social media post on an employer. So you might have the same post or even very similar or tiny, tiny differences. And in one situation, the employer is, is impacted. And in another situation, the employer isn't, or the tribunal sees it that way anyway. So, and that would, that could completely change the course of, of whether someone's, uh, treatment or disciplinary or dismissal even is found to be, to be fair or not.

So that's the impact on the business. So when they make a post about, let's say they made a post that resulted in clients saying, well, we don't want to work with you anymore. Uh, that would be a serious one that directly links the post with their employment.

Absolutely, yeah.

What about the fairly common issue of disagreements with individuals or personal statements, even if they're not directly impacted on the business?

We see that a lot and it can be very difficult when employees have disputes and a lot of the time those disputes are taken online. Or it doesn't even have to be a dispute, there might just be a case of all out harassment or some sort of one way correspondence. It doesn't have to include the employer or be related to if it is serious enough to warrant something like harassment or if it's aggressive or, or anything threatening or those kind of very serious posts, the employer will ordinarily be able to utilise those posts in a sort of disciplinary procedure. The question there will be the severity of the post and the content.

So if we delve into that particular topic in a little bit more detail, um, so we're looking at kind of the concept of cyber bullying and bringing the workplace into disrepute. What's the tribunal saying about that at the moment?

Yeah, so the tribunals in general will support the right of companies to, uh, you know, discipline employees on the basis of abusive behaviour, whether that behaviour is online or not. They often will allow an employer to bring that in.

We've seen many cases involving some pretty nasty stuff posted online, where the tribunals have said, you know, that the employer is entitled to use that content in order to bring it within the disciplinary procedures they already have. Often disciplinary policies or social media policies will, will make clear those parameters and they'll make clear that that should something be posted online. It could be treated as though it was posted within the workplace. So, it's another reason to, to really make sure your policies and your procedures are absolutely watertight on these areas so that if something does happen, you have that sort of Policy background to, uh, to rely on.

Let's put a scenario where I'm the employee and I've said something really inappropriate. Uh, there's a couple of arguments that I'm going to potentially raise. I think the first one potentially could be, well, I said it in my own time. This is, this has nothing to do with you. You know, I'm, I, you know, this, this purely a personal issue. What's the, what's the kind of view on that argument?

Yeah, I mean, it, it, there absolutely is the right to your, to your personal opinions. However, ordinarily, the, the, the courts will look at the connection between that post, any ability to link the employer to the employee could become relevant. We, we've seen a real push pull with tribunal decisions, taking each case on its facts and deciding whether that connection or that severity is enough to warrant that relationship of employment to, to come into play.

That makes sense to me. So if you were a, uh, an employee and you've made an abusive comment about another employee... Then that makes sense that that will be potentially pulled into a disciplinary procedure. If you make an abusive comment about a patient, if you work for practice, clearly that's going to cause issues.

But if you've made abusive comments about Joe Bloggs, who you disagree with in the pub, uh, nothing to do with work. Is there a way that might impact on the business?

It might. It will, again, it will depend on the content of the post. We've got some cases that have come through where because the content of those... This was a case, there was a case on Twitter, uh, for example, and the content of the post, obviously I actually can't read them out because they are littered with swear words, uh, so that's not going to go very well if I do that, but just, uh, yeah, they weren't very nice.

The tribunal found that they were very foul, very abusive tweets, uh, not directed to the employer, not directed to any, any other colleague. But in, in that particular case that I'm, that I'm thinking of, there was, the connection they found was that, that the employee had followed some of its employer's stores. It was a retail company and some of the stores had followed them back. That was a good example of the tribunal changing its mind on that because the original tribunal found that it had been unfair to dismiss this particular employee on the basis of some some foul and abusive tweets. But the slight bit that I can read without swear words involves ripping someone's head off. So yeah, you get the severity of what they're saying. Uh, but that went up to the employment appeal tribunal who reversed that decision and said that it was fair. They said that there was the connection to an employer because this person followed some of their employer's stores. Um, and that, that it wasn't fair to say that was entirely private and personal because of, partly because of the severity of the tweets.

So it can absolutely come within the realm of disciplinary action and it will be a case of a sort of review of how severe the content is.

That's an interesting one because it, it does almost get into that uncomfortable world of how much of a personal life is in involved with your work life? It's going to be quite a difficult decision on a case by case basis when in those scenarios.

Are there different standards to be expected if you've got kind of specific roles though? So, uh, we've heard of some quite shocking stories with the police. Um, there's been various matters, uh, where there have been investigations into posts and media that's been made. There's also been issues with, uh, doctors who've made some fairly shocking statements, but it is there a different standard or a higher standard that's to be expected?

Yeah, yeah, absolutely. The tribunals do recognize those things and, and very strongly in relation to particularly regulated professionals. There's an understanding there that there is a, not only is there a higher standard for each person, but there's a higher standard to the profession as a whole.

So, There is a responsibility on the profession to maintain that, that standard. Um, and so we've seen cases, there was a case, for example, up in Scotland involving the police. Again, you know, it was, it was from a WhatsApp group actually with, with some racist and sexist and homophobic content in there. It was a private WhatsApp group involving some officers.

And actually as part of the tribunal, it was the fact that the police officers were subject to high professional standards was found to be of relevance in whether that content and those posts could and should be used in the disciplinary procedures. So yeah, absolutely. It does make a difference.

Tribunals will recognise this higher standard. I mean, the trust in these professions is a massive part of the profession itself. So I think there's, there's an understanding that that can absolutely affect the standards they're held to in terms of their online posting as well.

And presumably most professions or many professions now have guidance and regulations on these topics. And I was looking at one a short while ago about the use of social media for doctors, and I think it's reasonable to say that that would be the standard to which, you know, try and make sense. You've got policies and procedures that at least reflect those standards for those kind of roles.

In fact, that takes me on to an interesting question about policies and procedures. Uh, at what stage do you, um, is there any issues of, getting kind of too much information and getting into the realms of kind of data protection risks with what you write? And on the other side of it, when it could it be too little, is it just a generic catch all, or please don't do this? Is that ever enough?

Yeah, no, it's a really good question because the last thing that, as an employer, you want is to have access to this information and have not put in place the sort of ability for yourself to use it. So what's really important in this area is making sure, you know, your house is in order in essence, with things like monitoring procedures, data protection procedures, those kind of policies are going to be really important because you may well have to justify the use of data or the collection of data that you have in your workplace.

And if you're not, if you've not been entitled to use that, or monitor in that way, you'll be in a difficult position. Um, so yeah, absolutely. It's, it's policies can be very specific. Um, it's important to try and catch, you know, catch situations in policies. Um, and then data protection rules so that, you know, they're complicated and they're difficult, but they're so important and they, they can really catch people out at the time when you, you need to be relying on them. Um, in terms of monitoring at work, it's, that's a really interesting point. And it's one that the European court of human rights, um, has ruled on a lot. It's easy to fall into a trap of if someone's at work or they're within work, but they're doing personal things, they're posting on their personal accounts, or maybe using an email address, it's absolute fair game for the employer. But that's not always the case. If you don't have the monitoring provisions in your policies, in your, in your practices, and you don't have some watertight data protection principles in place, you might not be in a position where that's where you're entitled to do that monitoring.

It can be a situation where you, you become aware of something and you become concerned, um, but you don't have the ability because you don't have the, the right documentation in place to, to look into that further. So it's, it's important and it's important as a, as a foreshadowing of hopefully never having to use that kind of power, but having it there, uh, in a justifiable way in case it's needed.

Well, let's, let's move on to the next bit then. Let's have, think of a scenario. You're a practice manager, uh, you're concerned that a member of your team is, uh, making inappropriate posts. What's the process that you'd kind of recommend that they would follow? Other than obviously phoning us for support and help.

Of course. Absolutely, phone us up. But yes, I think it's, it's important to sit, to sit down and take, take a think about it and take a breath because the most important thing is having everything ready. I mean it's a kind of pull the trigger situation once you tell someone you are not happy with a post or you when someone becomes aware that you have accessed things or you're going to, it can become, you know, you've got to be slightly careful about it becoming a little bit more heated. So I think before any of that happens, you should always consider the context of any social media posting. How close is the association with, with you? How likely is reputational damage? Um, cause that's something that you, you might well end up wanting to prove or wanting to show. That would be a sort of first step and really taking a think about what it is, uh, why it's something that you're not happy with, what the impact of that post is, is, has there been any fallout from it that you're aware of, and all those elements before taking any initial action.

No, it sounds really good advice because when problems do occur, they can spiral, uh, they can certainly become worse when there's relationships. And in small teams that practices often are... close-knit, I mean, we often hear the term or we're like a family. Well, in those environments, these situations can get far worse, far quicker.

Yeah, no, they absolutely can. It can all get very, very heated very quickly.

Now, partnerships are different to some extent. If you're a member of a partner, uh, you don't necessarily have the same employment, employee, employer relationships, um, so you're reliant on that relationship between you as, uh, you know, trustworthy individuals who are working to the common purpose of the partnership, but the principles that you've just outlined are exactly the same. Are you both, all conducting yourself appropriately? Is there damage being done to the business inside and outside of the, the partnership? Have you complied with your professional standards? These are the same kind of questions that you'd ask for your staff, but you'd need to ask for your partner, partners. The question that then needs to be asked is, well, when is it too much? When have you reached a point where you do need to take action and what is that action going to be?

Now, unlike in employment law, we don't have huge amounts of case law to guide us. Um, most partnership disputes get resolved, um, in behind closed doors, often in a mediation or an arbitration. But our experience of them is when there's a major kind of fallout about related to social media type topics, it's often quite a hard route to find a solution because they are so personal to the individuals involved.

So the same kind of principles that you've outlined would work perfectly well for partnerships as well.

Yeah, absolutely.

One area that a partner might argue, in fact anybody might argue, is that we've made a statement in our own time, in our own personal standards. We're willing to stand by it. We understand that there might be issues here. But, fundamentally, I have a human right of freedom of expression. So no matter what you say, you can't remove me because, um, I'm protected. That is something I have seen argued on various occasions, and I know that it's an area of quite significant kind of contention and discussion within the tribunals.

What's the kind of latest position on that?

Yeah, it's, it's absolutely a really common comeback to all of these arguments is freedom of speech, freedom of expression. It's a term that's used all the time in the media as well, which I think does sort of add fuel to that fire. And the most important thing about it is that it is absolutely a fundamental human right. It's legally enshrined, you know, every, everyone has the freedom of expression, the freedom, freedom of speech. But it's not an unconditional right, and it's not an exclusive right. So it's, it is there, but it's not absolutely immune to challenge.

So we've seen cases where the tribunals have supported the freedom of expression, and we've seen cases where they have said, no, in this situation, you know, the impact of your actions overrides that, or you don't have the right to freedom of expression on that topic.

So a couple of examples that we've seen in the last few years, one of them was, it was a big high profile case a couple of years ago about a tax expert who was very vocal on Twitter with gender critical views. And she argued that that was her freedom of expression. And she had the right to, you know, say these things on Twitter because it was her view and she was, should be protected for that was her human right. And the tribunal in that case agreed with it. They accepted that the views were. And they accepted that they might not be agreeable to everyone, but that didn't matter and she had the right to say her views.

And then we've got on the other side of the coin, some other hotly debated things. We've got false COVID conspiracies, and there's actually a really interesting case on that. In fact, it was a regulatory case, so not in the employment tribunal, but it does show where these freedom of expression arguments, where the line is on that. So, that case involved a surgeon who was suspended by the GMC for promoting false COVID conspiracies. He again said that he had a freedom of expression and there was his human rights, freedom of speech, arguments, and his appeal was dismissed on various grounds.

A couple of really interesting points that came out of that was that it didn't matter that the statements were made outside of work, as they reflected his, his profession. Still, the remarks had undermined public health. They were removed from reasonable medical opinions, which is, which is interesting. It was also found that the GMC had been within their power to act, including defining the professional standards using their own guidance on doctors' use of social media.

So again, it shows this importance of having policies, having procedures, having something to go back and rely on. But it's just an interesting couple of cases to show that there absolutely is no rule from tribunals or bodies that are deciding these things. It absolutely will depend on the context of the situation, the impact. And, and yeah, it's, it's a really interesting area and it's absolutely not possible to have one, one rule for everyone. But we, we're seeing trends. We, we, we see the nuances come through the tribunal procedures and yeah, we keep an eye on it and seeing what happens really.

Well this has been a really interesting discussion. Um, it's certainly one which I think we could talk for hours on, but unfortunately we don't have have the time. Maybe if this is a topic that people are interested in, please reach out and, uh, and let us know and we might be able to do some follow up or any more specific kind of deep eyes on any of these topics that we've, uh, discussed.

Other than that, I'd like to say thank you, Rachel, for joining us today.

Thank you.

And I look forward to the next topic and if anybody would like to suggest any ideas and topics for future, uh, podcasts, please let us know. We always like to respond to our listeners, um, to make certain that we're providing you with the most up to date information that's, uh, useful for yourselves.

Thank you.

Thank you.