Use of social media is widespread amongst employees in both a personal and a professional context. It can, undoubtedly, have significant benefits for employers, but these must be weighed against the potential consequences that can flow from misuse.
Particular risks for UK employers include vicarious liability for discriminatory or defamatory acts, breach of data privacy, infringement of third-party intellectual property rights, loss of productivity, dissemination of confidential information and reputational damage. How can UK employers reduce exposure to these risks whilst harnessing the opportunities that social media presents?
The key is to ensure employees are given clear guidance about what is and is not acceptable use of social media in the workplace and, where appropriate, outside it. If an employee strays outside the set parameters, disciplinary action, and possibly dismissal, may ensue.
Setting restrictions on use of social media, particularly outside the workplace, is a sensitive subject that must be given careful consideration. Excessive intrusion or discipline due to misuse of social media can lead to allegations that the duty of trust and confidence, and the employee’s rights to privacy and freedom of expression, have been breached. Nevertheless, the fact that actions may take place outside working hours via a personal account and/or device will not necessarily prevent an employer from lawfully disciplining an employee, provided the misconduct can properly be categorised and substantiated.
As with all conduct issues, it will assist an employer to be able to point to any rules, policies and training through which expected behavioural standards have been made clear to employees. In a recent case, a bar manager was found to have been fairly dismissed for starting a Facebook discussion, which contained offensive comments about customers. The staff handbook listed as misconduct acts committed outside work that brought the employer into disrepute. Moreover, the internet policy reserved to the employer the right to instigate disciplinary action if an employee contributed to a blog, including Facebook, that lowered the reputation of the company, its staff or customers. Here, the employee’s comments made their way back to the customers concerned and the ensuing dismissal was considered to be fair.
To defend a dismissal for misconduct, an employer will need to establish that it had a genuine belief in the employee’s guilt, had reasonable grounds for its belief in that guilt and carried out as much investigation as was reasonable in the circumstances.
An employer will also usually need to point to actual damage caused in order to justify dismissal, as a lack of damage may render the dismissal unfair. A recent example arose when an employee was deemed to have been unfairly dismissed for making a number of “relatively mild” Facebook comments in circumstances where there was no evidence of resulting reputational damage. Another dismissal was unfair because a video posted on YouTube had been viewed only eight times.
Key Points to Take Away
Employers should review their existing UK policies and employment contracts to ensure they deal expressly with social media issues. In addition to bolstering the ability to take disciplinary action for misuse that does take place, educating employees about proper use of social media and providing clear guidance will better enable employers to maximise the potential business opportunities provided by social media.
Potential misconduct issues that arise should be carefully categorised, and employers should be mindful of the need to balance employees’ rights to privacy and freedom of expression against legitimate business interests.