The FCA’s new rules on non-financial misconduct: social media and the right to offend

This is our third article in our series on the FCA’s new guidance on non-financial misconduct, which comes into force on 1 September 2026. Our series focuses on key issues for HR professionals and other individuals with responsibility for people issues in regulated financial services firms.  Those interested in these topics can register for our lunchtime Webinar on 14 July here: The FCA’s new rules on non-financial misconduct: what HR professionals need to know.  For an overview on the key changes, our first article can be found here: The FCA’s new rules on non-financial misconduct: key issues for HR professionals in regulated firms - Burges Salmon

In this third article in our series, we assess how the FCA’s new guidance might influence a firm's response to an offensive social media post made by an employee in their private life.

When is social media activity relevant to the Conduct Rules?

We explored in our previous post when a firm might need to take action because of behaviour in an employee’s private life.   Acknowledging the extent to which some personal lives are now conducted online, the FCA’s new guidance does give some particular focus to social media.

The FCA acknowledges that it cannot give a definitive answer to the question of whether the Conduct Rules would apply to social media use.  It gives an example of a message posted on a personal social media account by an employee, and identifies a range of factors for determining whether that post could potentially be in scope of the Conduct Rules, including whether the post is directed at a fellow employee, whether it is part of a course of conduct in the workplace and other factors. This will clearly give rise to some difficult and nuanced decisions for employers in assessing whether the Conduct Rules are relevant and/or whether they have been breached.

When is social media activity relevant to fitness & propriety?

The FCA’s guidance is clear that online activity may have regulatory implications where it raises concerns about an individual’s fitness and propriety.  Social media activity in an employee’s private life is assessed in the same way as other forms of conduct outside the workplace.

In cases where an employee’s social posts stray into threats of violence or other criminal conduct, then the issues will be clear cut.  The FCA recognises that this sort of conduct indicates a material risk that such conduct might be repeated in the course of performing regulatory activities.  From an employment law context, there is clearly a risk that such behaviour could be repeated in the workplace.  Most employers will be comfortable in addressing such activity under existing frameworks and that will already be covered by existing disciplinary or social media policies.

What about posts that are offensive or inflammatory?

The guidance makes it clear that a person can lawfully express controversial or offensive views without calling their fitness and propriety into question. That is the case even if those views are controversial, even if colleagues at work disagree, and even if colleagues are offended by the post. 

That is helpful guidance, but it does give rise to some difficult judgment calls for firms if they are dealing with posts that are offensive and discriminatory, particularly in a world where social media discourse is so partisan and divisive.  What does a firm do with a post that that a colleague complains is discriminatory?

Firms may be able to take action under existing social media policies, depending on how strict those policies are in relation to these types of post.  However, firms will need to take account of the FCA’s guidance at 1.3.17G which suggests that conduct which “demonstrates a willingness disregard ethical or legal obligations"  would be relevant to fitness and propriety.  Would a post that colleagues regarded as sexist or misogynistic demonstrate “a willingness to disregard ethical or legal obligations” under equality law and how would a firm make that determination?

That is particularly challenging in the context when firms are navigating highly charged and difficult issues arising out of competing beliefs which may be protected under equality law.

Are firms required to monitor social media?

Firms are not required to investigate every allegation relating to social media activity. In particular, there is no obligation to act where allegations are trivial, implausible, non-material, or irrelevant to fitness and propriety. 

Importantly, the FCA will not require firms to proactively monitor employees’ use of social media. However, firms will need to review existing frameworks, policies and procedures to ensure that these are aligned with the FCA's new guidance.

If you have any questions about the impact of non-financial misconduct reform on your firm, then please do not hesitate to get in touch with James Green, Carlene Nicol or your usual Burges Salmon contact.