The use of social media is now a fact of life, but many employers are struggling to keep up with the consequences of rapid technological change.

Background

Technology develops fast: it is hard to believe that Twitter has only been with us since 2006. The law moves more slowly and regulating new employee behaviours within the existing legal framework can be a challenge.

It is no longer as simple as an employer saying, 'You abide by our rules while you are at work and everything you do in your own time is down to you', as employees may be posting web content outside of work hours or while on the move and may be using their own equipment.

Work is a significant part of people's lives. In previous times employees may have gone to the pub after work to let off steam after a hard day, but now they go home and log on with the potential for their rant to reach a far, far wider audience.

While it is unsurprising that work may form a large part of people's social media content, if this involves maligning their employer, making negative comments about clients or rubbishing products and services then their employer will have a legitimate interest in taking action to protect its business and reputation.

Examples of problems which can arise from employees' use of social media include:

  • employees spending too much work time on social media sites (in 2009 Portsmouth City Council had to ban Facebook after staff members spent 572 hours on the website in one month, which equated to 71 working days)
  • employees using social media sites to criticise their employer or its products
  • employees posting material online (e.g. video) which embarrasses the employer or brings them into disrepute either directly or by association
  • employees using social media sites to bully other employees
  • employees using the internet to publicise things they disagree with the employer about or to spread dissent among the wider workforce
  • employees breaching confidentiality or giving away trade secrets online
  • an employer may discover misconduct by an employee as a result of what they have posted online (e.g. photos of them on holiday on days they have phoned in sick)
  • where employees are required to use social media for work purposes, what happens when they leave, who owns contacts, content and Twitter tags, for example?

A social media policy is a must

In a survey by YOUGov earlier this year, 28% of respondents said their employer did not have a social media policy, while 14% did not know whether or not their employer had one.

However, such employers are missing a trick. Not only can a well communicated policy regulate behaviour by ensuring employees understand what is and is not acceptable, but it can provide an effective defence to claims for unfair dismissal.

For example, in Preece v JD Wetherspoons plc an employment tribunal held that a dismissal was a fair sanction for a pub manager who had a conversation complaining about two of her customers on Facebook, while she was still at work.

A key finding was that the employer had a well drafted policy which reserved its right to take disciplinary action against any employee whose blog might be found 'to lower the reputation of the organisation, staff or customers'.

Discipline and dismissal

While an employer who follows a proper procedure will usually be able to dismiss fairly for a significant breach of a social media policy, the employer needs to avoid making the assumption that everything an employee posts on the web which is connected to work has necessarily brought their reputation into disrepute.

In Taylor v Somerfield, an employment tribunal found that an employee was unfairly dismissed for posting behind-the-scenes video of the supermarket on YouTube. The tribunal was clearly influenced in its view that the dismissal was not reasonable by the fact that the video had only received eight hits, Somerfield was not identifiable from the footage and no complaints about the clip had been received from customers.

In another tribunal case, Whitham v Club 24 Ltd t/a Ventura, an employee was found to have been unfairly dismissed because her comments about her employer on Facebook were relatively minor and therefore did not warrant the sanction of dismissal.

Material posted on-line by employees may also be in breach of other policies such as bullying and harassment. In Teggart v TeleTech UK Limited, a tribunal in Northern Ireland found that an employee was fairly dismissed for making vulgar comments about a colleague on Facebook, as these amounted to harassment, in breach of the employer's dignity at work policy, and were sufficiently serious to justify dismissal for gross misconduct.

Action points for employers

  • Draft a clear and comprehensive social media policy. Including practical guidelines for employees.
  • Communicate the policy to the whole workforce so that everyone fully understands what is and is not acceptable behaviour.
  • Social media is, by its very nature informal, employees may not appreciate how this can lead to workplace issues so it could be helpful to train staff on the dos and don'ts.
  • Once you have a policy in place it is vital that this is enforced consistently and line managers should be trained on disciplinary procedures etc.
  • If you allow staff to use professional networking or other sites for legitimate work purposes, consider asking them to sign up to special terms regarding confidentiality and post-termination restrictions.