The increasing use of social media presents both benefits and risks for employers and employees. The ability to connect with others, create a network and communicate quickly to a wide and often targeted audience can enormously benefit an organisation when used positively. However, those same features of social media sites can also cause significant problems for an employer when the use of social media by an employee or former employee is not in the organisation’s best interests, particularly if controversial comments are re-tweeted, shared, re-posted or ‘go viral’ and reach a mass audience.
In this blog post, we will delve into key aspects of social media in the workplace, addressing issues such as setting rules and standards for employee use, tackling online bullying and harassment, understanding the role of digital evidence in HR processes, and determining ownership of employees’ professional social media profiles. By exploring these topics, we aim to provide a comprehensive understanding of the implications and best practices associated with social media in the workplace.
What is Social media?
First, let’s define what social media actually is. There is no legal definition of social media. It generally means internet-based applications which people use on computers, tablets and smartphones to connect, keep in touch and interact socially by creating and sharing content in the form of text, photos or video. There is a wide range of different types of social media sites including social and professional networks, community sites, blogs, microblogging sites, wikis, web forums, social bookmarking services and user rating services. Indeed, we have all no doubt heard of Facebook, Twitter, Linkedin and Instagram.
Setting Rules and Standards for Employee Social Media Use
One of the fundamental steps in managing social media in the workplace is establishing clear rules and standards for employee use. Acas recommends the implementation of a social media policy that outlines guidance for employees regarding acceptable behavior, both online and offline, for instance by clarifying what employees can and cannot say about the organisation. The policy should address the distinction between personal and professional use of social media, protecting the organisation’s reputation, and minimising reputational risks. Additionally, it should clarify the consequences of breaching the policy, emphasising that disciplinary action, including dismissal, may be taken in response to inappropriate social media conduct.
Employer-owned social media accounts require clear guidelines. In any social media policy, employers should emphasise the account’s value and their ownership rights. Access to login credentials should be ensured, and rules must be set regarding information disclosure and expressing opinions. Confidentiality, political neutrality, and adherence to legal requirements should be addressed. For businesses reliant on client connections, additional rules on engaging with business contacts can be considered in the social media policy.
Who Owns Your Employees’ Professional Social Media Profiles?
Due to the grey area as to who ‘owns’ social media accounts or the connections made on them, it is better for an employer to make this clear from the outset in its social media policy. The policy should therefore outline whether work-related social media accounts are owned by the employer and establish rules for connections made with business contacts during employment. Contracts and settlement agreements may also need to include provisions related to social media contacts and post-termination restrictions.
Indeed, in the case of Whitmar, the claimant company successfully applied for an interim injunction to prevent former employees from, amongst other things, misappropriating and misusing its confidential information. This included four LinkedIn groups managed by one of the former employees on behalf of the claimant in the course of her employment.
Employees using personal accounts for work or professional purposes raise ownership and confidentiality concerns. While an individual’s LinkedIn network is typically considered their private property, this is not always straightforwardly the case. Factors such as creation during employment and relationship development of clients and suppliers of the employer can mean that the employer also has a vested interest. To protect against breaches, post-termination restrictions can require employees to disconnect from employer clients and prohibit reconnecting during a specified restraint period. Employers should therefor ensure employment contracts or settlement agreements include these provisions for effective safeguarding.
Dealing with Cyber-Bullying and Harassment Online
The rise of social media has unfortunately brought forth instances of cyber-bullying and harassment. It is crucial for employers to take such incidents seriously and address them as disciplinary matters. Making it explicitly clear to employees that online harassment and bullying will not be tolerated is essential. An illustrative case is Otomewo v Carphone Warehouse, where an employer was found vicariously liable for harassment related to sexual orientation on an employee’s Facebook page. Employers must ensure that their response to online harassment is proportionate and aligned with their established policies and procedures.
Misconduct Relating to Social Media
Employee misuse of social media can lead to various forms of misconduct that require appropriate disciplinary action. Instances such as bullying, disclosure of confidential information, writing disparaging comments regarding the employer, employees or customers, or publishing offensive material can significantly impact an employer’s reputation and relationships. When addressing such misconduct, employers should consider factors like the nature and seriousness of the offence, any previous warnings, the impact on customer relationships, and the reasonableness of the employer’s disapproval. Dismissal for a first offence will rarely be fair, although may be justified in certain circumstances, but fairness and proportionality should always be assessed.
Another important matter to consider is whether rights under the European Convention of Human Rights (ECHR) – such as the right to privacy – might be engaged. On some social media sites, such as Facebook, there are privacy settings that employees may use to limit the number of people who can view their posts. Although a tribunal will take into consideration range of users who can view an individual’s posts, a tribunal may recognise the lack of control a user has regarding reposts etc. Users of social media can publish content to a limited audience of their friends, but that content can easily be ‘shared’, ‘Retweeted’, ‘reposted’ and can go viral to thousands of other users, therefore the lack of control over the information is likely to remove a reasonable expectation of privacy.
Even if the right to privacy is engaged the employer may still be able to justify interference with that right if the employer’s actions are proportionate in the circumstances, for example, if necessary to protect the employer’s legitimate interest in protecting its reputation and relationship with customers.
The Role of Digital and Online Evidence in HR Processes
Digital and online evidence plays a vital role in HR processes, including disciplinaries, grievances, and sickness management. Employers can rely on screen-grabs or screenshots of relevant social media posts as credible evidence. Verbal testimony from involved parties can also contribute to understanding social media interactions. However, it is important to give employees an opportunity to respond to allegations based on social media posts, allowing them to provide explanations or clarifications. This ensures fairness and a comprehensive evaluation of the evidence.
Social media in the workplace presents numerous opportunities and challenges for employers and employees alike. By setting clear rules and standards, addressing cyber-bullying and harassment, understanding ownership of professional social media profiles, and effectively utilising digital evidence in HR processes, organisations can navigate the social media landscape more effectively. It is essential for employers to proactively establish policies and procedures that strike a balance between protecting their interests and respecting employees’ rights to privacy and freedom of expression. Through careful management and clear communication, organisations can leverage the benefits of social media while mitigating potential risks.