Mo Salah's own goal: when venting on social media outside of the workplace leads to a red card

Mohamed Salah's post match comments about being "thrown under the bus" lit up the news cycle this week. His club responded by leaving him out of their European squad and the story continues to dominate the back pages. That is elite sport in a crisis. But most employees live in a different world. If you publicly criticise your employer or colleagues, the fallout can arrive fast, and it may end with you out of a job and on the sidelines.

Non disparagement often bites before defamation, but is it gross misconduct?

Public comments do not need to be defamatory to breach your contract and off-duty conduct is not off-limits to your employer.  Many employment agreements include a non disparagement clause that seeks to prevent the employee from doing something which brings (or is likely to bring) you or the company into disrepute or which is materially adverse to the company's interests. 

This is much broader than simply not allowing defamatory statements.  Whilst defamation law concerns whether a statement is false and whether it causes or is likely to cause the company "serious financial loss" (within the meaning of the Defamation Act 2013), non-disparagement clauses do not require a statement to be false or even a statement at all. They can be triggered by any negative impact on the company. A heartfelt account of your experience in the workplace, an opinion on a TikTok about your employer's approach to certain topical issues, or a thread that airs internal grievances may be defended in libel as honest opinion yet still breach your contract.  

Even if there is no such clause in your agreement, an employer may have a separate policy on public statements that your comments could contravene.  In the absence of a contractual term or policy,  a statement could still amount to misconduct or gross misconduct in some circumstances.

However, that's not the end of the matter.  An employer would need to balance a range of factors if it wanted to take action against an employee for making public statements.  Even if the statement was a technical breach of contract, this may not be sufficient to justify dismissal and there can be other reasons why that's not wise in any event. 

Not just offensive statements

Social media posts that are offensive or disrespectful about the company, even if the employer is not explicitly named, can fall foul of the relevant terms or provisions, or otherwise be the subject of complaints to the employer. Non-disparagement provisions and policies can extend beyond spoken or written accusations or complaints. They may also cover public conduct, for example conduct filmed by others that go viral.  In an age where more and more people are filming this is a situation that is coming up frequently. 

Why employees should not rely on "it is only my opinion"

Honest opinion is a defence in defamation claims. It protects opinions that indicate their basis and which are genuinely held.  However, even an honestly held opinion that would succeed in defence of a libel claim can still give rise to an issue for employees.  On the other side of the coin, an employer should carefully consider all of the circumstances of the post before deciding what action is appropriate, whether or not the post technically contravenes the usually low threshold set out in contractual non-disparagement clauses and if there is any chance of a potential backlash to their proposed response.  Failing to do so risks reputational issues for both employee and employer. 

Using the Salah moment 

What Salah said in his interview could be defended as his opinion and lived experience. Even if he has breached his contract or any relevant policy (which is impossible to say without seeing them), Liverpool taking serious disciplinary action is an unlikely prospect.  In an elite football context, clubs often avoid dismissal because transfer economics and player value make termination hard to justify.  One only needs to look at the Alexander Isak situation over the summer, which Liverpool were arguably the beneficiaries of.  For those not interested in the soap opera drama of the summer transfer window, Isak effectively declared himself unavailable for Newcastle's first game of the season stating his desire to leave Newcastle.  Despite Newcastle's desire to keep him, he eventually got his way moving to Liverpool for a sum reported to be £125 million (and presumably a few more pennies in Isak's weekly pay packet). 

The lesson for the (unfortunately) more ordinary employee is simple: do not assume your employer will tolerate any public attacks or statements.  If you have concerns, it is likely better to use the usual  legitimate channels, typically raising a grievance or reporting the issue to a relevant whistleblower hotline (either internally or externally). Speaking to the press or making statements online as the first port of call, as opposed to a regulator or your employer, can be hard to justify to a court or tribunal further down the line (unless you're a £125m striker). 

Practical steps for employees

• Read your contract and policies before posting anything online about your employer. Find and understand your non disparagement commitments and any social media policies.

• If you decide to speak publicly, stick to facts, indicate the basis of your opinion and avoid naming individuals. Never publish confidential information belonging to the company (again this should be defined in your contract or policies but it is usually broadly defined). 

• Use internal routes to air your concerns or speak to an appropriate regulator.

• Assume your social media posts are permanent – beware the screenshot.  Privacy settings help, but they are not a shield if colleagues or clients follow you.  Deleted posts can be (and often are) recovered. 

• If you have already posted and have concerns, seek advice. Do not reflex delete without guidance, and avoid adding new commentary that worsens the optics.