The use of social media tools such as Twitter, Facebook and LinkedIn has increased exponentially since their launch several years ago. The average user now spends approximately five and a half hours every month on these type of sites. The availability of a huge range of affordable smart phones with internet access means that an employee is never more than a few clicks away from a whole range of social networking sites.
Such easy access means that users can readily tweet, blog or post about events occurring in their life and provides a forum whereby they can articulate how they feel about others around them.
Given this easy access and the fact that, for most full time employees, at least a third of their waking day is spent in work, it has become clear that the boundary between the two is becoming increasingly blurred. Aside from the obvious potential reduction in productivity in staff through use of these sites during the working day, such posts, comments, blogs or tweets can leave employers and employees exposed to potential claims for bullying and harassment by other employees, potential claims for defamation and result in the disclosure of confidential employer information.
Notwithstanding the above, there are positives associated with the use of social media as it provides a means for people to connect and develop networks of contacts within the world of work which in turn leads to new opportunities for business development and growth. The challenge however is to balance the opportunity for growth with the threats and risks of inappropriate use of social media.
This in turn begs the question what employers can do to protect their business interests and their reputation. Below we have set out some tips which may assist employers in meeting the challenges of the social media age.
Policies and Procedures
Most employers will already have in place an internet and/or email usage policy within their company handbook. However, in this ever changing on-line sphere of communication, it is imperative for employers to review their existing policies and procedures to ensure that they remain fit for purpose.
In relation to the content of any social networking policy, it should be very clear as to what is considered acceptable usage. The policy should clearly address items such as:
- Acceptable levels of use of social media whilst in work, either while on company computers or on personal devices;
- Acceptable and unacceptable references which may appear on-line, including references to the employer or other employees;
- Transparency and disclaimers;
- Monitoring practices and enforcement of the policy;
- Reference to existing company anti-bullying and harassment policies;
- Sanctions for the breach, linked to disciplinary procedures.
Training and Awareness
It is vital that any social media policy in existence needs to be available to staff and they need to be aware of its content. Those standards which are expected needed to be communicated both through the introduction of the policy but also through training on these issues. It is also vital that the policy is reviewed and updated on a regular basis to take account of any changes in this developing area.
Attitude of the Courts/Tribunals
Case law incorporating aspects of social media is starting to emerge. The Irish case of Kiernan v A-Wear (UD 643/2007) is one of the few reported cases in Ireland dealing with the employment law aspects of social media. Here the Employment Appeals Tribunal (EAT) adjudicated on the dismissal of an employee who had posted disrespectful comments about a manager on the social networking site, Bebo. The claimant was ultimately dismissed for gross misconduct and the EAT held that whilst the company's disciplinary procedures were fair, the sanction applied was not. It held that the sanction of dismissal was disproportionate to the offence. This case clearly illustrates, that notwithstanding having a fair and objective disciplinary procedure in place, an employer must also ensure that the sanction applied is proportionate to the offence.
In contrast in the UK an employee was fairly dismissed for making derogatory comments about customers on Facebook whilst at work (Preece v JD Wetherspoons Plc ET /2104806/10). In this case her employer had a clearly drafted policy which warned that employees might be disciplined for making derogatory comments in blogs about customers, staff or the organisation.
As case law in this area is still in its early stages, it is not yet possible to point to a consistent pattern being taken by Tribunals or the Courts. However, a common thread throughout all these cases is that Tribunals clearly like policies. The best way to protect an employer's interest is by having a clearly drafted policy in relation to social media so that any decision taken by the employer can be justified in all the circumstances.