The huge growth in social media in recent years has created challenges as well as opportunities for many employers.
Staff may be required to use social media as part of their employer’s business activities such as marketing or recruitment activities and it is important that any such communications are appropriate. Many employees are also likely to be engaging in social media activity of a personal nature, which may at times affect their employers' interests.
It is advisable for all employers to consider whether their approach to social media in the workplace sufficiently protects their interests. Key areas that employers should consider include:
Should you adopt a social media policy?
Different workplaces will have different approaches to use of social media. However, given that the vast majority of employees make use of social media, it is important for all businesses to have a policy in place which sets out clear guidelines. Employees should be made aware of what social media activity is and is not acceptable to their employer and the possible consequences of acting in breach of any such policy.
Common issues that should be addressed in a social media policy include:
- Why the policy is needed. Staff may be more willing to adhere to such a policy where they understand the risks that their employer is trying to address;
- The standards expected of employees in relation to use of social media. This should include guidelines for work-related use and personal use of social media;
- Information about monitoring; and
- Information about the potential consequences of failing to comply with the policy. Employees may be directed to disciplinary and grievance procedures.
It is advisable for employees to be given training on the appropriate use of social media.
Is your information adequately protected?
During the course of employment, it is not unusual for employees to build up a significant list of contacts and followers via social media accounts. The question of who “owns” social media accounts and therefore has a right to retain the followers and contacts of those accounts has no straightforward answer.
Employers should consider what business information employees are gathering in social media accounts and the risks that this poses to their business. It is sensible in practice to ensure that where appropriate, the employment contract includes terms which regulate the use of social media during employment and on termination of employment. Employers should also consider whether any post-termination restrictions in the employment contract are drafted to take into account any information stored in an employee’s social media accounts.
It is acceptable for an employer to have a policy that allows for the reasonable monitoring of internet usage by an employee provided that the benefits arising from that policy outweigh any adverse impact. Employers will need to give careful thought to this issue to ensure that any monitoring being carried out is appropriate and lawful.
There is a growing body of case law dealing with the dismissal of employees who have misused social media. Misuse of social media can affect businesses in various ways. Examples include reputational damage to the business owing to comments made by an employee and departing employees using their social media accounts to misuse the employer’s confidential information.
Case law in this area demonstrates that employment tribunals are more likely to find a dismissal for misuse of social media to be fair in circumstances where the employer has clear guidelines in place which set out the standards expected of employees.
Employers are well-advised to carefully consider whether their policies and procedures are adequate in relation to the misuse of social media.
Bullying and harassment
Many employees will be connected with their colleagues via social media accounts. In recent years there have been several cases concerning bullying and harassment via social media.
Employers ought to be aware that they become involved in matters which are not necessarily work-related.In one recent case, an employee was found to have been subjected to discrimination and harassment due to the fact that the employer allowed gossip about the paternity of the employee’s child to spread unchecked and then failed to appropriately address her grievance relating to the matter.
Employers should be alert to complaints from employees about activity taking place on social media even if that activity is not work-related and is conducted outside working hours. Employers should also consider whether their policies on equal opportunities, bullying and whistleblowing adequately address the potential issues arising out of the use of social media.
During April and May 2018, Taylor Walton LLP will be running a series of free workshops aimed at HR professionals dealing with the practical issues that arise out of the use of social media in the workplace. To book a place at one of the workshops please contact the events team by telephone on 01582 731161 or by email firstname.lastname@example.org.