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Do you have a Social Media at Work Policy?

Businesses can help protect themselves by having in place a social media policy, setting out the boundaries of acceptable social media use by its employees.

January 2011

Social media are a powerful resource which many businesses can harness to their advantage. The instantaneous nature of content posted on social media sites, the broad accessibility of online information, the speed at which information can be shared and the ability for people to keep in touch with contacts even when they move job all give rise to significant harm from use challenges.

Businesses can help protect themselves by having in place a social media policy, setting out the boundaries of acceptable social media use by its employees.

recruitmentRecruitment

Businesses are increasingly using information obtained from social media to provide further insight into potential new recruits. This has undoubted advantages in seeking to employ the best candidates. It provides a source of less rehearsed and bland information. So, prospective employees beware if they make a posting they would not want a prospective employer to see. A photograph posted on Facebook showing a job applicant apparently snorting cocaine might reasonably justify their application being rejected. However, use of irrelevant information can be dangerous for a company if they use information which may justify a discrimination claim. For example, if an applicant’s photograph on their Myspace page shows that they are a wheelchair user and they are rejected by a prospective employer which has viewed their page, an inference may be drawn that their rejection was based on disability.

Claims arising out of employee postings

Claims for breach of confidentiality, defamation, breach of privacy or harassment may be brought against an employer by third parties where an employee posts content in the course of his or her employment which contains information or material about which a third party has concerns. An employee untruthfully tweeting on an official company twitter account about the alleged negative treatment of women by a competitor’s managing director may be faced with claims against them for defamation and their employer may face the same claims. Even posts made outside the course of employment might see claims threatened by third parties against an employer, and reputational damage.

goldfishCommunication between employees, not only in the workplace but also through social media sites, also has implications. A certain amount of contact may be positively encouraged to boost team morale. But some comments which seem appropriate to one employee might be unwanted by another. Beyond workforce unrest, employers aware of an employee posting unwanted material about a colleague may find themselves liable for legal claims, such as for harassment. An employee who, in an attempt at banter, comments on the Facebook wall about a colleague’s sexual proclivity, may lead to complaints of sexual harassment which an employer could find itself on the hook for where it is aware of the unwanted behaviour and does not address it.

Employee/Employer tensions

Employees’ opinions may reflect negatively on the reputation of their employer, whether or not this is intended. It is increasingly common for employees to complain about their employer or line manager on their personal social media site. A recent YouGov survey indicated that 11% of those under the age of 35 admitted posting a derogatory comment about their employer on Facebook.

There is limited case law on whether a dismissal arising from an employee's use of social media sites is likely to be "fair". For an employer to defend a claim by an employee that they have been unfairly dismissed, the employer will need to show that its decision was proportionate and reasonable having regard to the nature of the information posted by the employee, the actual or potential harm that may be caused to the business, and whether that conduct has been clearly prescribed by the employee's contract or a policy. Depending on the seriousness of the misconduct, a lesser sanction than dismissal may be appropriate, such as a formal warning.

Whose contacts?

With social media sites such as LinkedIn and Facebook, the boundaries are being blurred between where business contacts end and social contacts begin. It is therefore likely to become increasingly difficult for an employer to protect their business contacts where a departing employee who is moving to a competitor has developed quasi-business contacts on social media sites. Again, the employer will have to strike a delicate balance between respecting the employee's private life and seeking to protect its own business.

signpostPractical tips

Here are some practical tips on finding the right balance:

A social media policy

This should set out as clearly as possible what is and is not considered acceptable conduct by employees in their use of social media sites, and explain why. This should primarily focus on conduct inside the workplace, but possibly also outside it. Potential implications of breaching such a policy should be clearly highlighted.

Training

Businesses are increasingly recognising the benefits and potential harm of social media. Providing training on the positive use of social media sites and what would generally be considered to be inappropriate use can help obtain buy in for employees and prevent use which could be potentially damaging to the business, while also safeguarding its employees' rights.

A "social media" officer

This will only tend to be appropriate for larger organisations or organisations built around the use of social media. The role of a social media officer is likely to entail giving prior approval to posting of official information on social media sites and being consulted about concerns about potentially inappropriate use.

Monitoring

Monitoring is a controversial topic, given the importance placed on rights of privacy and freedom of expression. In some businesses, monitoring the use of social media sites, as with internet and email use, may be appropriate. In practice, monitoring might include the monitoring of use of social media sites in the workplace and the content on accessible social media pages of employees to ensure compliance with the social media policy. If monitoring is to take place, this should be made clear in the employee's contract of employment or a policy dealing with monitoring of communications. The more clearly consent to monitoring can be demonstrated, the easier it will be to defend. Those staff monitoring the use of social media should be limited and should of an appropriate level of seniority, while information which is not relevant to the purpose of the monitoring should be ignored.

Restricting access entirely

A blanket prohibition on use of social media sites while at work may seem a sure-fire way to prevent harm being caused by its use. But, such a policy is likely to be unpopular amongst employers, viewed as stingy by the public and will not prevent inappropriate use outside of work, which will be harder to control.

If you have any questions on this article please contact us.

people at work
John Plant

John Plant


Read about the employment issues surrounding social media. I'm interested in how the law on social media-related dismissals develops in 2011.

"Communication between employees, not only in the workplace but also through social media sites, also has implications"

 

Quick Poll Results

From the recent poll we can determine that:
45% of companies use social media as a marketing tool
24% of companies have a social media policy in place
30% of companies use social media as a recruitment tool?

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