The time to ignore social media has long since passed. With new technology and social media developing all the time (Myspace is due a relaunch), employers need to keep up and keep control of their employees’ online habits at work and in some cases at home, if they are to limit potential claims for discrimination or harassment and damage to reputation.
The development of bring your own device (BYOD), which enables employees to use their own smartphones, tablets and laptops for work, is another potential cause for concern, and raises the obvious question: how do employers control the use of social media, personal emails or text messages, when employees are using their own equipment for work and personal use?
Employers need to set the tone and standards of behaviour for the use of social media and reserve the right to take action as necessary to deal with any incidents
A good social media policy is linked to other company policies (on discipline, equal opportunities, IT security and acceptable use of company equipment), is essential. The policy should guide employees on what they can and cannot do online and inform them of the risks of non-compliance. Online bullying and harassment of other employees through the use of social media is an area of increasing concern for employers, as they may be vicariously liable under the Equality Act 2010 (the Act) if employees’ behaviour constitutes discrimination, harassment or victimisation, on protected grounds, such as sex, race or age.
To be liable, the act must be done ‘in the course of employment.’ In this context, it could easily encompass the use of smartphones to access Facebook at work, sending colleagues lewd or abusive messages on BlackBerry Messenger or adding to a Twitter feed during a breakout session at an industry conference.
There is a potential defence to claims under the Act, if the employer can establish that reasonable steps were taken to prevent this type of behaviour. Having a social media policy, conducting regular training of staff and reviewing policies to keep up with developments in technology and new online trends are ways in which employers can establish this defence, but they also need to address the behaviour and react appropriately when it occurs.
Employers should remind employees that their online activities may not be private, especially if they infringe the rights of others. In particular, employers investigating bullying and harassment online may obtain and use evidence of abusive comments, as part of a disciplinary investigation, as they are often publicly available, or brought to their attention by other employees or third parties. Facebook has led to several high-profile cases involving employees who breached company codes of conduct and policies on social media, equal opportunities and harassment. Twitter, as a forum for instant publication of comments and live streaming of retorts, has the capacity to cause real damage, if it is not carefully controlled.
Employees should also be aware that they themselves may be sued (with their employer) as an individual respondent in an employment tribunal claim, brought by their victim. In extreme cases, they may also face civil proceedings for harassment or even criminal proceedings for malicious communications.
Above all, employees should be warned that they may face disciplinary sanctions for misuse of social media, whether they are at work, or not, if their actions breach company policies, bring the company into disrepute or cause harm to others.