The One Thing Employers Miss About Social Media Monitoring & Why It Matters - Lloyd Clarke - S10E04

0:00Lloyd Clarke:What I always say to people that work with me is pick up the phone before the client picks up the phone to you. A lot of firms now will have policies around this where they'll say put a disclaimer on any social media profiles to say that those views are your own and they're not reflective of the organisation that you work for. As lawyers, we probably understand better than most because we know that what we do in and outside of work is reflective of us as an individual and we're heavily regulated. but I don't think it obviously applies for other people. And for employers as well, there's always the kick that they can be vicariously liable.

0:31Lloyd Clarke:Over recent years, what is considered in the course of employment has expanded quite considerably. Social media, probably at its worst, is a permanent record.

0:40Rob:On today's Legally Speaking podcast, I'm delighted to be joined by Lloyd Clark. Lloyd is a partner and head of employment and business disputes at Atwell Solicitors. He has a wide ranging experience across property, employment and business law. Lloyd is known for his practical down-to-earth approach with his clients. He is passionate about how changes in property and employment law are affecting both individuals and small businesses. So a very big warm welcome to the show Lloyd. Hello thank you very much for having me Ron. Pleasure, pleasure to have you on the show and looking forward to today's discussion but before we get into that I do have a nice break a question or two for you which is what is your favorite beverage and what is your preferred choice of footwear during a work day they're both really good questions um favorite drink or beverage is

1:27Lloyd Clarke:gonna have to be coffee i mean i i live off coffee i must say i think that's the one thing i'd struggle with if i uh if i didn't have that in my life apart from my wife and my kids maybe i think that's that that sort of completes the top three um and how do you take your coffee uh most of the time black okay so yeah yeah i don't do things by half sort of do do it hard or don't do it at all so um so yeah that would be my answer to that one and footwear footwear um if if i'm not seeing clients it's got to be trainers um we have a dress for your day policy here which i love um i tend to wear a shirt but i do wear shoes and a jacket suit if we're seeing clients, but ideally a nice crisp pair of white trainers never goes amiss for me.

2:18Rob:There we go. Black coffee with white trainers. Don't stain it. That's it. Absolutely. Well, that leads nicely, I guess, on to talking a bit more about you and your background. So could you start by telling our listeners a bit more about your career journey and background?

2:33Lloyd Clarke:Yeah, I mean, my career journey is probably slightly different, or it was at least in my day. that makes me sound really old i'm only 40 but um it's sort of it does make you realize how much we're getting on i mean i'm from a very working class background um first person in my family to ever go on to further education and that even includes college um from a generation of builders my dad was an electrician um so it was it was a very different route that i took in in a sense of sort of I wasn't from sort of a learned lineage or anything like that with with people in my family who were doctors or lawyers or anything like that it was a very different route that I took but I was I was fantastically supported by my family and I'll always be forever grateful for that so I sort of first thought I wanted to do law was doing work experience when I was 15 at a local firm and that was to do with crime which obviously I'm no longer practicing in or have indeed ever practiced in um thankfully i think by all accounts um and and then i went off to college i studied law loved it still um made the incorrect decision as it turns out now to go and study sports science because i thought it was going to be like one of those brilliant lucas aid adverts that you see on tv um unfortunately there wasn't quite a lot of sport and there was a hell of a lot of science um so that that only lasted three months um i then come out of university and ended up down working on a building site for nine months if that's ever an encouragement to get back into further education being on a on a building site when it's about minus 10 it doesn't come much better than that um i went back and studied law which is probably what i should have done in the first instance and went on to do my lpc uh after that once i finished that i was i was lucky enough to to get a job where i am now i've been here for 16 years i think so it's a very very long time um i found that job when i started off working in conveyancing which anyone will tell you i'm not a conveyancer um at all it's not it's a very difficult job i think it's somewhat of a task um but it wasn't probably didn't play to my strengths um so i ended up um being given the opportunity uh i've been offered a training contract and given opportunity to build the employment law department and go on and qualify into it so when i went into the department it It only accounted for 1 % of the firm's turnover.

5:02Lloyd Clarke:And a year later, it accounted for 10%. So it had been a really big growth. And I'd sort of driven it with as much energy as possible, built that department up. And it sort of is where it is today. And I've gone on from being an admin assistant, standing at a photocopier all day, copying documents, which is probably something very alien to people nowadays. But doing that to being a partner, I've been a partner here now for six or seven years. So I've made a partner at 33, which is still relatively young. And yeah, and it's sort of grown and grown since.

5:37Rob:What a journey and huge congratulations on what you've achieved and where you are currently as of today. Let's talk more about your practice area specifically, because what areas do you specialize in underneath the employment umbrella and how broad is the practice of the firm?

5:54Lloyd Clarke:Yeah, I mean, employment law is by its nature is very broad and particularly at the moment, we're probably seeing how much it changes. It changes every time a new government comes in. The Labour have got a huge amount of policies that are looking to push through in terms of the employment rights bill. Quite how they're going to fund all of this stuff and have the resources for it, I don't quite know. But yeah, we deal with the full aspect of employment law. So whether you're an employee, an employer, we deal with SMEs to large businesses, international businesses, care businesses, property businesses.

6:28Lloyd Clarke:It's really wide and varied. But that's one of the reasons why I love what I do, because very rarely do I ever have two days that are the same. They're always different. And you never know what's going to be on the other end of the phone when it rings. It's very challenging. It's difficult. You have to stay on top of employment law because it is so fluid and constantly changing. but it's an incredibly interesting area of law.

6:50Rob:Yeah, absolutely. I've always found it an interesting area of law and obviously running businesses as well. You know, I'm always sort of in talks with employment lawyers and all of that good stuff. You mentioned there, no two days the same. I mean, could you give us a bit of a flavor of what a typical day might be as someone operating at a partner and obviously indeed running a department in terms of head of employment and business disputes at Well Solicitors?

7:10Lloyd Clarke:Yeah, I mean, my roles, I have a number of different roles. So I'm partner, I'm head of a department, I'm also the client care partner because we're huge on client care here. Anyone that goes on our website, we've won multiple awards for it. It's a huge part of what we do and sort of our KPI for staff and our USP for externally. So I do that. I'm also a member of our management board as well. So we meet every week to review, obviously, how the firm's doing, what we can do to improve it, identify any problems as early on as possible. so I have a wide range so no two days are the same and what I would generally say is I spend the vast majority of my day speaking to clients a lot of what we do is very reactive in the sense of the phone rings in what you thought might be a relatively straightforward day can very quickly change yesterday I had three telephone calls within the space of an hour of agreements that need to be negotiated and drafted that day.

8:11Lloyd Clarke:So it's drop hands, everything needs to be done. Sometimes you're presented with things like injunctions, if there's been any breach of confidence or restrictive covenants, which literally require you to drop everything and jump on them. And people, because of the nature of the work, generally contact you in a time of real need. Yeah, yeah.

8:29Rob:And that's the thing, isn't it? And you have to be there. And that's why if you're being exceptionally client centered and really caring for them, understanding them, that's what sets you apart from probably clients feeling like just another number or just pushing through um you know the matter just for the sake of billable hours and so forth i mean your expertise you know as you sort of alluded to spans a whole spectrum doesn't it some sort of disciplinary grievance proceedings unfair dismissal you know discrimination negotiation of exit packages settlement agreements etc etc etc can you tell us or talk us through a particular memorable case that stood out for you and if so why well i mean i think i think there's

9:05Lloyd Clarke:been a few we've dealt with um we've dealt some some very high value business disputes as well which is another area that i deal with sort of half million million pound settlements we've dealt with some c-suite executives some some very high up very well paid very senior people we've dealt with some very interesting employed i mean employment law again is something which throws up lots of different um instances you know you have claims to do with sexual harassment claims to do with discrimination uh social media which obviously we're probably going to talk about a lot more in detail later on it's a bit of a hotbed for for controversy and um and interesting topics really it's very rarely is it is it boring or dry in terms of what we do um there's there's lots of different stuff so we've recently been dealing with a case of a director who's alleged to have been sharing explicit messages with a member of staff that staff raised a grievance experience and and sometimes within blunt law you learn with experience what might appear on the face of it to be one thing is very different once you delve into it so most people would assume that you know you've got a senior male employee and a more junior female employee they would make there'd be aspersions that would be cast when you actually keep the into it there's a lot more detail um that's involved in that and when you are dealing with people who are in senior positions they sort of have three hats they can have the hat of an employee the hat of a director and hat of a shareholder and there's all different legal relationships obligations in respect of each of those hats which you have to deal with um you know we deal with people sometimes in terrible situations people you know really really suffering from bad mental health issues attempting suicide things like that and and it's that's when client care really comes to the fore in terms of what we do because you have to listen you have to make sure like you say that people don't feel like there a different number that you're not looking at them you know with pound signs in your eyes but you generally care and you generally want to help these people we're a business we have to make money of course we do to to say um to say a vote as such but um going that extra mile for clients you know ringing them at eight nine o 'clock in the evening if that's the only time they can speak to you five six o 'clock in the morning you know calling them on the way into work you know on the way home from work things like that being responsive they're the things that make a big

11:29Rob:difference yeah and that's what makes you set apart doesn't it and I think what you're mentioning there as well is devil is in the detail you know some of those points you're mentioning there so yes you might read the headline or have a assumptions but actually it's in the actual granular detail knowing the right questions to ask as the qualified expert you providing legal counselors is super important and just a little bit on your management style before we'll lean to social media where you're touching there. What is your management style in terms of, you know, when you're approaching things internally and perhaps also externally with managing cases?

12:01Rob:Give us a bit of a flavor of your approach.

12:04Lloyd Clarke:I think being proactive is incredibly important. What I always say to people that work with me is pick up the phone before the client picks up the phone to you, you know, be updating people, be on the front foot with this stuff because when people get snowed under and bogged down with work, it's when they're not being responsive and they're not seeing things that are coming down the track with it. I have a very open door policy, as do all the other partners here. I share an office with my staff. I don't hide myself off. I'm in here. They're listening to my phone calls. I'm listening to it. They're learning things constantly.

12:35Lloyd Clarke:And I tend to think that even in this age where people are working more remotely, especially with junior members of staff, if they're sat in close proximity to you, they're hearing the way that you're speaking to clients. They're understanding the way that you're dealing with problems. and they're much more likely to ask you a question if you're sat three feet away from them than jump on a team's call or pick the phone up to ask that question and it's those human connections I think which are incredibly important probably the final thing I always say to people especially when they do make mistakes because we all make mistakes is you'll always learn a hell of a lot more from your mistakes than you will your successes yeah I love that and I use the

13:11Rob:acronym all the time and people on the show probably be sick of me saying it of lose you never lose its life offering some experience and that's the way i break it down um as part of that and and yeah it's so true you know learning through osmosis in the environment being around people i think there's something for that like you say that quick fire question it might feel quite daunting to send a quick slack message or a teams or an email about something but someone's next to you just tap them on the shoulder said do you mind doing a review of this or do you mind just asking this or how would you do this or go and grab a quick coffee so there is definitely something in that um for sure and thanks again for sharing a bit more about your style and approach about being proactive i'm really sort of advocate for that as well um if you want something you want to get ahead go and make it happen yourself and be proactive okay big part of today's discussion we can't get away from it social media so you specialize obviously in employment law but your use of social media has reached an all-time high we're all on it we're all part of that world how can social media posts impact employment in lots of different ways i mean some statistics that i looked

14:09Lloyd Clarke:at for today i even i was shocked with and i deal with this quite a lot 97 of uk workers access social media at work which is incredible and on average they're spending nearly an hour and a half a day on it and only five percent of that is dedicated to work which is it is in itself you can draw it and nearly half of all employers have taken disciplinary action against their staff for the use of social media at work so it's so important it in a positive there's positives and negatives in positives it can enhance your professional reputation as an individual like linkedin done well is a fantastic thing i've used it as a good tool in terms of my career progression and stuff like that um but equally if an employee is using social media and we tend to see it more on platforms such as twitter or x now facebook if they are using that incorrectly or they're misusing it it can cause a hell of a lot of damage to employers and their reputation as well and that is largely what a lot of these cases and the developments around this area law are, is that where employees have sort of misstepped, as it were, in terms of comments that they've made, even outside of work.

15:17Lloyd Clarke:And that's something that as lawyers, we probably understand better than most, because we know that what we do in and outside of work is reflective of us as an individual, and we're heavily regulated. But I don't think it obviously applies for other people. And for employers as well there's always the kick that they can be vicariously liable so liable for for acts of their employees that are done in the course of employment and over recent years what is considered in the course of employment has expanded quite considerably and social media probably at its worst is a permanent record of what you've said yeah it's so true and i love that

15:55Rob:you reference linkedin done well can be really great and useful for your career progressions It's something I advocate for, you know, the show, my own business, building a personal brand. I owe a lot to a platform like LinkedIn. And I remember someone said to me very early on, if you're going to be online, treat it as if you're offline. I.e., if you're going to put something out in writing, you should feel comfortable saying that to someone to their face in a meeting at that point in time. Don't sit behind the keyboard and write things that perhaps you wouldn't be comfortable doing, because ultimately that's the same version of you.

16:23Rob:Be the person you are offline, online and bring that to you. Okay, let's talk about employment disputes now, maybe some sort of evidence around it. Have you noticed an increase in cases where social media posts are used as evidence in employment disputes?

16:36Lloyd Clarke:Yes, I think that's growing more and more because people use social media to vent rightly or wrongly about these things. And I think a trap that some employees will fall into is that if they're on Facebook, for instance, and they have a private profile, so only the people that they're friends with on Facebook can access it, They sometimes think they have carte blanche to say what they want, and that will never sort of escape that circle of trust. And, you know, case law and everything else and common sense probably to some degree says that inevitably it does. And there's even been cases where people that have had a private Facebook or social media profile have made comments.

17:12Lloyd Clarke:And even friends within that network have then reported them to their employer in respect of things that they've said on there. So that is where this stuff is becoming more and more prevalent. And I think it's going to, with AI and things like that as well, I think it's just going to get bigger and bigger.

17:28Rob:Yeah, no, absolutely. Is there a top tip you would say to employees from common mistakes? It sounds like that's pretty common what you see. Is there any other sort of common mistakes you see employees make online that ultimately affects their jobs and maybe some tips you would give to them to avoid?

17:41Lloyd Clarke:Yeah, I mean, I would always think carefully before you post. always better to have a private profile than a public profile is what I would say private is by no means like I say to give you carte blanche but it does limit the exposure effectively if you do make a misstep online who sees that potentially it is drastically reduced and just making sure that and a lot of firms now will have policies around this where they'll say put a disclaimer on any social media profiles to say that those views are your own and they're not reflective of the organization that you work for those would probably be the first things that would come to my mind in terms of what employees should do okay so and that's good advice and thanks for

18:24Rob:sharing that although not advice it's just educational purposes let's caveat that that is a podcast good disclaimer good yeah absolutely um but we've talked about the employee side let's flip it now to the employer's side then what kind of actions can employers take when staff post about work and how are employers actually monitoring employees social media activity it's always a

18:42Lloyd Clarke:very difficult balance to strike because you don't want to interfere with an employee's private life and their right to freedom of expression and we're talking about a European Convention on Human Rights and again there's been a lot of case law around this stuff more so with people expressing what some would consider controversial opinions in terms of gender identity and things like that but I think from an employer's perspective the number one thing you should do above all and it's and a quarter of all employers still don't have one social media policy is so important to have it have a standalone policy and two biggest tips that you can do probably with any policy but particularly with a social media policy make it simple and make it clear don't have a 15 page document people will never read it people might not understand it have something short sharp setting out what's expected of them what the consequences are, what steps they have to take to protect things like proprietary information, confidential information, and link it all back in terms of things like the ACAS code, which is overseas what what employees should do generally, and should always be a reference point when you're drafting or looking to discipline someone.

19:58Lloyd Clarke:That is absolutely key. So that is the number one tip that I have is to make sure that you have not only have a policy, but any policy you do have, make sure that it is simple and clear.

20:09Rob:There we go, folks, the good old KISS principle. Keep it simple, stupid. Absolutely. Today's episode is brought to you by Clio. Are you frustrated with your current legal management software? You're not alone and thousands of solicitors across the UK feel your pain. However, the hassle of moving all their existing client and case data holds most back from switching, prolonging the frustration. Clio is here to help as the intelligent legal work platform bringing together context-aware AI and trusted legal research to power the legal practice management. Clio's dedicated migrations team will be with you every step of the way while you transfer your information.

20:48Rob:If you have any questions, you'll get award-winning support available 24-5 by live chat, phone and email. So help is always there when you need it most. It's no wonder Clio consistently receives five-star ratings for its ease of use and top-notch service. If you're ready to leave frustration behind, visit clio.com forward slash UK to learn more and see why Clio continues to be the go-to choice for solicitors across the UK. Now back to the show. It's better to be clear than it is to be clever. Getting people lost with words or legalese or particularly people in the organization don't come from any form of legal background or don't have an understanding of those.

21:26Rob:You've got to write for your audience and keep it in plain English. And actually, having hosted a whole raft of lawyers on the show over the years, you know, the top, top, top lawyers that are executing on billion-dollar transactions, when you talk about the quality of the transactions and documents they put together, they say, we keep it simple. We don't put the jargon in there. Keep it simple, clear, simple to understand as best as we can. So it's obviously tight, and we use the right appropriations of language, but we're not stuck on just trying to overly try and complex documents for the sake of it.

21:55Rob:And I think that's some really good advice because then you can hopefully get a good understanding, good level of adoption and hopefully social media policy then did too. OK, let's go about misconceptions about rights because you've touched on this. So what misconceptions do employers often have about their rights over their staff behaviour online?

22:13Lloyd Clarke:I think it's probably being too heavy handed in terms of monitoring. So monitoring staff, you know, you should very rarely should you ever monitor what a staff does outside of work unless it's obviously brought to your attention. If there's excessive monitoring, you can get yourself in trouble with that. I think unless there is targeted monitoring, so someone brought something to your attention and you've then investigated it and you're making sure that you're doing that in line with any policy or procedure, making sure it's objective, making sure it's fair. You have to be careful. And the probably even bigger mistake that people make is, as the case law shown in this area, an employer, there's an obligation on an employer to show that there is actual reputational harm rather than what a lot of people do is they they seem to imply or think there's going to be reputational harm or risk so people will say if it's a comment that they don't necessarily agree with entirely they go from zero to 100 and these disciplinary action can be knee jerk and they can try and please people or crowd please other people in the organization who might be outraged at what might not be an outrageous statement so i think always be calm and measured with your approach take your time don't react too quickly.

23:24Lloyd Clarke:And don't be too heavy handed with employees as well, because, you know, again, as we've seen in recent years, people do have a right to express opinions, some opinions which can be controversial.

23:35Rob:Yeah, yeah. And again, thank you for being very clear on that as well. And hopefully this is going to help a lot of organizations and perhaps employees as well, just get more clarity around this bit of a minefield. And it's only going to continue to grow with the number of social media platforms. And indeed, like you said, the time and dwell time people are having on these platforms okay um just to kind of make things clear for people top three tips for companies looking to balance employee privacy along with protecting the company's reputation what would be like your absolute lloyd says top three tips go away and take these away if that's all you take away as an employer from this podcast yeah monitoring is not

24:11Lloyd Clarke:a free-for-all that's probably the first thing i would say um you can set rules for it um but just make sure that you're able to justify those rules and have a clear and simple policy. Those have been my three things.

24:27Rob:Love it. And simple, clear answer. Thank you. Okay. Okay. Let's flip the script again then for those that, you know, because social media is powerful, you know, it can help you get jobs. It can help you get mentors. You know, I do advocate for using social media. So this has been a really interesting discussion. So what advice would you give to someone who's keen to use social media to show insights, maybe into their career, build a personal brand but also whilst being respectful of the company they work for if you have to think twice