The intertwining of social media with everyday life significantly impacts regulated individuals. It has become a matter of concern for employers of those regulated individuals, regulatory authorities, other third parties and the regulated individuals themselves. Those holding professional registrations may conduct themselves in a manner that generally aims to promote public confidence.
However, regulated individuals often fall foul of social media rules and examples of both criminal prosecution and civil causes of action have arisen with regulated individuals being the subject of further professional disciplinary and regulatory processes.
Individuals with professional registrations may suffer long lasting detriment due to not only the overarching civil or criminal action against them but also the associated disciplinary processes by their regulator which may end their careers. There is also the unanswerable question of where the line between professional and private life lies. The use of social media brings these issues under increased scrutiny.
Background
In 2021, ten police officers appealed against the refusal of their petition for judicial review concerning the use of social media messaging by police officers during a disciplinary process. It was held that as police officers they had no reasonable expectation of privacy regarding the messages in question. Furthermore, there was no interference with their rights under Article 8(1) of the European Convention on Human Rights, on the basis that police officers should uphold high professional standards, to retain public confidence in policing and ensure an adequately regulated police force.
The primary concern here is not so much to question the legitimacy of such standards, but rather to clarify the expectation of individuals working in regulated professions. Indeed, the typical rights of expression and privacy may not extend to those in position of public trust and confidence.
The nature of an employee’s role will have a bearing on the extent to which standards are expected. In Ketterer v Scottish Fire and Rescue Services, K made the error of posting details of an incident they had attended in derogatory terms onto social media and was subsequently dismissed from the fire service. The Employment Tribunal found at paragraph 136, that the interference with K’s privacy must be weighed against the respondents aim, which is taken to be preserving the trust of the general public… it is accepted that the duty not to abuse that trust [is of high importance].
The position suggests freedom of expression and the expectation of privacy on social media is curtailed in professions which require greater public confidence. The challenging question we face is to what extent the is restriction legitimate. In Ketterer, posting a message about vulnerable members of the public involved in an emergency incident resulted in his dismissal. K’s actions of sharing information in a derogatory manner were the turning point at which the dismissal was found to be fair. That is to say that the public would expect confidentiality and professionalism from firefighters attending to them in an emergency. The infringement on K’s privacy and freedom of expression was therefore justified when balanced against the fire service’s legitimate aim of maintaining public confidence.
Established principles
Activities outside of work in regulated professions also matter. Employees and regulated individuals need to ensure that their activities outside of work do not risk the reputation of the employer or regulator. A civil service worker employed by the Ministry of Justice was dismissed from her post for participating in the creation of erotic images and posting onto social media platforms. Despite the images being created outside out work her dismissal turned on the principle that her conduct breached the Civil Service Code of Conduct and could cause reputational damage. The Code sets out that employees of the civil service must not place themselves in a position whereby there is a conflict between their private interests and their duties. The employment tribunal found that the dismissal was fair on the basis that her activities outside of work constituted a serious breach of the Civil Service Code.
These established principles surrounding regulated individuals lead to a number of specific considerations for the legal representative. Whilst not an exhaustive list, consideration should be given to specific duties set out in regulators’ codes for conduct such as duties of candour, cooperation and disclosure. The moment legal representation is instructed considerations for damage limitation must also be considered. In cases of disciplinary procedures where a regulated individual is the subject of scrutiny, the legal representation should focus on professional and ethical standards set out by the regulator and encourage cooperation, disclosure and positive action towards reflective practice and learning.
Regulated professionals should be well advised of the expectations over the use of social media. They should be acutely aware of the risks associated to it. The issue that we face is the ease by which social media blurs professional and personal life creating lasting, published records. Many professionals chose to pursue a career knowing of the standards to which they will be bound. Registered professionals having pursued such a career should consider the use of social media seriously. The extreme position would be to advise of a completely sterile social media profile, but many wish to engage in these platforms for reasons of business development and networking, seeking to promote their work and the profession. Before posting, it is critical to consider reputational issues, ensure that posts are thoughtful rather than reactive, and consider the recipient's perspective.
Honesty and transparency
Honesty and transparency are central themes across all professional standards. The General Medical Council (GMC) set out their expectation of openness and honesty in the Professional Duty of Candour. Solicitors are bound by Solicitors Regulation Authority (SRA) principles 4 and 5 requiring honesty and integrity respectively. The Health and Care Professions Council (HCPC) set out expectations of openness and honesty in part 8 and 9 of their Standards of Conduct, Performance and Ethics.
This means that one of the critical steps in most cases of disciplinary or investigative action being brought against a regulated individual, is to advise any potential interested party. The Nursing and Midwifery Council (NMC) succinctly set out that registrants “must tell [them] and [the employer] at the first reasonable opportunity.” This means that if a referral is made to the regulator by a third party, rather than the employer, the regulated individual should inform their employer. Where a dispute arises in the workplace, the regulated individual should refer themselves to the regulator.
In difficult circumstances, this demonstrates compliance with the required professional standards. It is important to note, as does the NMC in their guidance, that there may be an additional requirement to notify those employers or regulators outside professional environment in which the complaint arises. For clarity, a dual qualified doctor and solicitor should notify both regulators.
The second area for consideration is co-operation, once again this is a key feature of most professional standards. The GMC, HCPC, SRA and NMC set out specific duties to co-operate with investigations. This is a critical part of damage limitation. When combining principles of honesty and openness with a co-operative and collaborative approach to the investigation of concerns the regulated individual is able to demonstrate compliance with the expected standards. In some cases, behaviours and actions during regulatory processes may well be sufficient to demonstrate learning. It may allow the regulated individual to assert a position whereby they have made a mistake and acknowledge it with demonstrable learning and development following the concern being raised.
While not written for the purposes of alarming regulated individuals, it is important to face reality of the high professional standards expected of those individuals. Social media provides numerous platforms on which professional and personal life blurs. However, we have to acknowledge that those individuals are fallible and errors of judgment do occur. Where such errors occur, the legal representative must turn to those professional standards with a view of not only advising on the nature of an alleged breach but also to advise the individual on how best to demonstrate compliance through the regulatory or disciplinary processes. This approach is not the solution but we are in the realms of damage limitation after all.
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