Over the last ten years social media has become ubiquitous. Social networking on Facebook, professional networking on Linked In, and a mixture of both on Twitter, among others. Everyone uses it, all the time. The benefits of these services are fairly clear – new opportunities for business, a virtually limitless audience for marketing, and the ability for businesses and individuals to interact on a hitherto unforeseen scale. However, there’s also a flip-side to benefit – risk. There are numerous risks associated with the use of social media – errant employees harming an employer’s goodwill, employees bullying or harassing other employees, and the ever-present danger of breach of confidentiality and/or an employer’s intellectual property. A recent employment case (see here in the Telegraph) illustrates the importance of employers implementing a comprehensive social media strategy for their employees. What we will therefore look at in this post is the benefits and risks of social media, the consequences for employers of misuse of social media, and prudent steps that an employer should take to limit its liability.
As explained above, there are clear benefits and risks to allowing employees to use social media, whether at or away from work. As well as it being difficult for an employer to ascertain when one of its employees is misusing a social media service, the consequences of such misuse can be very expensive and may involve such nasty processes as a trip to the Employment Tribunal or through Her Majesty’s Court Service.
Should your employees misuse social media (for example, by posting inappropriate content on their Facebook account or Twitter) this may potentially be sufficient grounds for an investigation and, should the circumstances warrant it, disciplinary. Should the consequences of misuse of social media have been made explicit to employees (for example in the employee’s contract, restrictive covenants or staff handbook) then this may potentially warrant dismissal. Employers should take care, though, that the correct procedure was carried out and that it was a reasonable decision in the circumstances to dismiss. However reasonable the decision, though, you may be embroiled in an Employment Tribunal case within 3 months should that employee be so inclined and this can also be an expensive process. Prevention, rather than cure, is the best way forward.
Another potential consequence of social media misuse is the ability for employees to abuse, humiliate, harass or bully other of your employees. Should such bullying or harassment relate to a protected characteristic (age, disability etc.) then there is a good chance that you may be subject to an Employment Tribunal for discrimination or harassment under the Equality Act 2010. If employers are made aware of any potentially discriminatory treatment or harassment then immediate action should be taken. Prevarication only makes things worse. Sit both employees (the bully and the victim) down and have a chat. Should the conduct persist then take reasonable measures to prevent such treatment occurring.
A major worrying for employers is the potential for breach of confidentiality or dissemination of intellectual property through social media. The worry is not only that it harms your business prospects (through divulging of the information) or that it complicates the employee-employer relationship (depending on the context then it may justify termination of the contract of employee) – it may also breach a confidentiality agreement with a third party. This can lead to the employer being sued (and there’s generally not much chance or recouping a substantial amount from the errant employee as a Part 20 Defendant).
So, what should employers do to prevent such misuse of social media or limit their liability? The first thing to do is adopt a social media policy, preferably in the staff handbook. This should make it clear that social media activity in the workplace is not necessarily private and may amount in certain circumstances to (potentially gross) misconduct. However, be careful that such policies do not discriminate in themselves. Employers should think about including such restrictive covenants as those covering the employee’s use of IT resources at work, employee’s use of third-party intellectual property, the prohibition of defamation through social media, and so on. Further, employees should be trained as to the consequences (both for themselves and the employer) of misuse of social media. This includes the consequences that harassment or bullying may entail. The important thing is to maintain a positive corporate image without undermining the morale or confidence of employees.