Employee participation in social media is de rigueur in today’s workplace for marketing and communication purposes. However, potential risk exists for employers where social media is misused by employees as an instrument of harassment in the workplace. Employers should take steps to ensure they do not have any potential areas of exposure.

1 Understand the meaning of “in the course of employment”

Where an employee is allegedly harassed by another employee online, there is no requirement to show that the alleged wrongdoer was acting in the course of employment. It does not matter if the alleged wrongdoer was in work at the time of the alleged incident or if it occurred outside the workplace. However, the alleged victim must have suffered the harassment in the course of employment whilst he or she was engaged in an activity authorised by the employer. This includes attending an event outside the workplace.

2 Have a social media policy in place

Employers must be able to demonstrate the measures they have taken to prevent the occurrence of any offending conduct on social media. It is important for employers to have a clear policy on the use of social media in the workplace and that the policy is circulated to all employees. Any such policy should protect employees from prejudicial or harmful treatment by their work colleagues, including, harassment or discriminatory treatment. Employers should ensure that they reserve the right to vary and review the policy to take account of future developments in internet capability and social media usage. Employers should also have a Dignity at Work Policy and ensure that this includes a provision specifically for the purpose of preventing harassment through social media.

3 Ensure that the policy provides for disciplinary action

The Social Media Policy must explicitly prohibit the misuse of social media by employees and social media being used as an instrument of harassment in the workplace. The policy must also explicitly state that any breach of the policy could result in disciplinary action, up to and including, dismissal from employment. An employee should only be disciplined for breach of clearly understandable rules of what constitutes misconduct.

4 Outline best practice guidelines in the policy

Guidelines providing information for employees using social media in a business capacity should be included in the Social Media Policy. These guidelines may also be helpful to employees when using their own personal social media accounts.

5 Outline notice and take down procedure in the policy

Employers should operate a notice and take down procedure for employer operated social networking. The procedure should be used where a post to an employer’s social media account is thought to contravene the social media policy. The procedure should outline to whom notice must be sent to request that a post be removed and what steps will be taken upon receipt of such a request. In certain industries employers use a Notice and Take Down Request Form.