Can an employer monitor an employee’s social media use?

The rise of OnlyFans

The OnlyFans subscription site exploded onto the social media scene during the pandemic, with over 170 million people now using the site. The site allows users to post premium content behind a paywall, from elite athletes posting their training regimes to content creators producing adult material.

Former Hollyoaks actress, Sarah Jayne Dunn, who had been a show regular since 1996, was axedfor deciding to keep her OnlyFans account. Hollyoaks proposed that if Sarah removed all photos and stopped promoting explicit content on the site, she could have remained on the show but in the end, she failed to ‘reach a solution with bosses’. Channel 4 found that Sarah’s presence on the site would not reflect well on the brand, who were concerned about reputational damage.

We expect to see an increase in people setting up their own Only Fans accounts because of the economic downturn, in order to bolster their personal financial situations.

Should this conduct be investigated?

Yes. You should take time to ensure that a thorough investigation is carried out by collating evidence regarding the conduct, whilst allowing the employee time to respond to the allegations. Once a meeting has been arranged with the employee, a decision can then be made as to whether disciplinary action should be taken.

A dismissal for social media misuse should not be taken lightly. In the case of Trasler v B&Q, an employee posted Facebook posts that their workplace was “beyond a ****ing joke”. The employee was dismissed, however the Tribunal found that the dismissal was unfair. It was decided that it was not reasonable for the employer to conclude this was a threat to their business. The relationship had also not deteriorated to the extent that a dismissal was deemed necessary in this situation.

What can you do to protect your business?

• Investigate any social media misuse conduct, fairly and independently.
• Implement a comprehensive social media usage policy, which should set out a separation between business and private use of social media and what this means in practice.
• Update your disciplinary policy so that it lists examples of what is likely to amount to gross misconduct, along with relevant sanctions
• Consider updating your contract of employment to include terms that expressly prohibit certain types of activity.

Capital Law Employment Investigations

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Article co-written by Claire Tait, Nina Holmes and Emily Allison.