Social media in the workplace
Rhiain Lewis, partner and employment solicitor at GA Solicitors, provides advice on how to protect your business where social media is concerned.
When social media first emerged many organisations, especially those in the public eye, reacted by imposing strict bans on employees from referring to them on social media.
As we now know, the use of social media can be an effective way to promote a business, but a balance needs to be struck to protect the business and its employees against misuse. Having clear rules, which are explained to staff, is vital.
Some estimates suggest that employee misuse of the internet and social media costs the British economy billions of pounds every year. Recent examples of misuse include:
- A bar came under criticism from a celebrity guest following a tweet by a junior employee which resulted in the employee’s friends turning up and ‘hounding’ him
- Carphone Warehouse was liable for unlawful sexual orientation harassment of a manager by a subordinate who, without permission, accessed the manager’s Facebook account during working hours and made a post which the manager found distressing
- A national retailer lost an unfair dismissal claim because its policy failed to make it clear that complaints about the store/customers on social media would be treated as ‘gross’ misconduct. The policy described such postings as ‘misconduct’, which meant that dismissal for a first offence without warning was unfair
Although it is not a case of ‘one size fits all’, policies should include the following as a minimum:
- A definition of social media
- Clear guidelines for staff authorised to use work-related social media channels, as well as other staff members, about what can and cannot be said about the organisation
- Rules regarding personal use of social media during and outside working hours
- Details of what is and is not acceptable behaviour (e.g. disclosing customer names, criticising colleagues)
- Sanctions for breach, including a requirement to remove social content if instructed
- Details of how use will be monitored (ensuring compliance with relevant legislation)
- Cross-references to other relevant policies such as IT, anti-harassment and disciplinary
Our employment lawyers are increasingly advising on the appropriateness of disciplinary action in the context of social media posts. In many cases the employees were not aware that their posts might be misconduct. As a minimum, employers should review their social media/IT policies to assess whether they are fit for purpose and adequately communicate them. Failure to do so could result in a successful unfair dismissal claim or an expensive discrimination claim by an employee who has not been adequately protected from cyber-bullying by a colleague.
In some circumstances, policies will not give sufficient protection. The use of LinkedIn by professionals and sales teams presents a unique challenge when key employees leave. It is common practice and good business sense to encourage relevant staff to engage with clients and customers via social media sites, and many social media policies encourage this. Under the LinkedIn user agreement the account holder owns the contacts, not their employer. Inventive solutions designed to protect the customer-base include robust post-termination restrictive covenants and contractual obligations to remove those contacts on termination. Businesses with concerns should check the employment contracts of relevant staff to assess if they give adequate protection or speak to a qualified employment solicitor.
Rhiain Lewis, partner and employment solicitor