Social Media in the workplace – watch your step!

Social networking sites such as Facebook, Twitter and LinkedIn have revolutionised the way people all over the world connect with their friends as well as their professional contacts.  They are also beginning to change the ways businesses access and interact with their customers.

Social media presents great opportunities for people and businesses but also huge risks if they are not managed properly.  A daily diet of social media stories appearing on both the Internet and in the traditional media reinforces the impression that there is an epidemic of bad behaviour by employees and swathes of intolerant employers overreacting to seemingly innocuous postings on social media.  It is therefore important to be aware of the dangers of social media and take steps to protect yourself.

For example, in one widely reported case, an Apple employee was dismissed for criticising the employer’s products and practices to friends on Facebook, in contravention of an express policy which prohibited the making of any comments about the company in social media.  The employee thought he was only speaking to friends but one of them printed off the email and showed it to his boss.  Apple is known to guard its brand jealously and was able to defend an unfair dismissal claim as it had a very clear policy on references to the company in social media use.  However, employers must be proportionate in their response and think about the seriousness of what actually occurred rather than what they imagined the damage might be.

In another case, a housing association demoted one of its managers for posting opinions on Facebook about gay marriages in church.  His Facebook profile identified him as working for the housing association although there did not seem to be any suggestion that he was making the post in that capacity or that he was speaking on behalf of the employer.  However, the employer felt that the post breached its policy that opinions posted in social media should not be taken to be views of the employer.

One area that causes particular concern for employers is LinkedIn connections particularly where those connections include clients and the employee is using the platform to connect with clients after termination.  The courts have still not ruled on who owns or is entitled to control those connections, and given that they are stored in the Cloud, it seems that it may be difficult to restrain the use of them after termination.  However, they may provide useful evidence of unlawful solicitation of clients’ business and in one case an employee was required by the court to disclose his LinkedIn connections so that the employer could ascertain whether he was breaching his restrictive covenants against dealing with clients.

Preventing Social Media Fallout

Ultimately, there is little an employer can do to guarantee an employee posting something in their private capacity does not damage the business.  One of the main problems with social media is that it is treated as an informal and temporary mode of communication, similar to a chat with a friend over a drink.  However, anything posted on the internet is permanent and may well be shown to unintended recipients, even if there are privacy settings on their profile.  So what was once unrecorded and informal is now available for the entire world to see.

Employees need to understand that use of social media should not be unrestricted or casual.  Problems can be avoided to some extent by the introduction of a carefully drafted and balanced social media policy.  Even if the company has prohibited social media use in the workplace, employees will be using social media, probably even during the working day on their smart phones.  Employers therefore need to educate their employees about the dangers of posting something on social media that might embarrass them or the company, and let them know what the consequences of that might be, as that will at least reduce the likelihood of inadvertent lapses. 

Drafting a policy is not an easy task, as every industry and sector will adopt a different approach.  Equally, it would be wise for employers to ensure that they have employee support for any policy as it will often be an intrusion into their private time and could cause employee relations issues if overbearing.  There are many parts of the business that have a stake in this process, including HR, marketing, IT and the legal department.  Ideally, a policy will have input from all aspects and will have four components: Education, Guidance, Rules and Contacts/Confidential Information.

Education

A policy should inform employees about the risks associated with the use of social media as many are simply unaware that comments they might make to friends on a platform like Facebook, or videos they post to YouTube can impact on their employment.  Informing employees not only minimises the risk of damage to the company’s image, it also ensures fairness for employees so that they are fully aware of the consequences of an inappropriate comment.  This also makes it more likely that any disciplinary action or dismissal will be found to be fair in an employment tribunal.

Guidance

Guidance on how best to use social media for the benefit of the company would be helpful, although not essential, as employees may not know how to take advantage of the undoubted opportunities presented by social media.  This is an area that the marketing/PR function of the company is most likely to have a stake and the best knowledge.

Rules

The rules will contain the traditional do’s and don’ts one might expect to see in a policy, such as time-wasting, defamation, preserving confidential information and not bringing the company into disrepute, but there are also other less obvious elements such as whether a work email address can be used for a private account and whether it is acceptable to “friend” with certain categories of people on Facebook e.g. university lecturers with students.

Contacts and confidential information

It is important to ensure that a policy deals with issues relating to the ownership of social media connections and what employees may do with their connections on termination.  This is a developing area of the law which the courts have not yet got to grips with so it is preferable that there provisions which are contractual                  as to what happens on and after termination.

Social media is fast-evolving and new platforms are emerging all of the time, each of which will bring its own dilemmas and problems.  Social media represents a big opportunity for those that know how to grasp it, although many remain to be convinced that it is anything more than a time sink, into which hundreds of hours of productivity will flow.  However, whatever stance you take in relation to social media as a marketing tool, it has revolutionised communications between employers, and employees will need to be aware of and be ready to deal with the consequences.

The Employment Lawyers Association (ELA) is an apolitical organisation representing the views and interests of over 6,500 specialist, qualified employment lawyers in the UK. Since its inception in 1992, ELA has become the voice of authority in employment law.

ELA’s members are drawn from all branches of the legal profession and include barristers and solicitors who act for employers and employees, trade unions, the voluntary sector, industry and the judiciary.

ELA’s fundamental aims are:

• to promote the best practice of employment law; and
• to support the work and represent the interests of UK employment lawyers

Richard Linskell can be contacted on 020 7427 1076, or alternatively by emailing: Richard.linskell@speechlys.com.