In my last article I wrote about the potential threats that face employers from the use by employees of social media and recommended that businesses have a social media policy.
To recap, the main threats to an employer from misuse of social media are;
- Reputational damage
- Breach of confidentiality
- Time wasting
- Liability to third parties
- Liability to other employees and to prospective employees.
Why is a policy necessary? Employers need to manage their employees’ fairly and consistently and this applies to how they respond to their employees’ usage of social media as much as to any other area of managing staff. There is an implied term of trust and confidence in every employment contract and breach of it may amount to a repudiatory breach, enabling the employee to claim constructive dismissal. There is also an implied term in every employment contract that an employer will provide reasonable support to ensure that the employee can carry out his/her duties without harassment or disruption by fellow employees, following the case of Wigan Borough Council v Davies  ICR 411. As I mentioned in the last article, a business can potentially become liable to an employee if he/she is being “cyber-bullied” by another member of staff.
One of the most significant objections that employers can face when disciplining staff is that they acted unfairly or inconsistently. That can give rise to a claim for unfair dismissal and, potentially in certain circumstances, a claim for discrimination. Compensatory awards in unfair dismissal claims are currently capped at £68,400, whereas in claims alleging discrimination or bullying/harassment on the basis of a person’s gender, disability, race, sexual orientation, age or religious/philosophical belief there is no such cap, meaning that a discrimination claim could be catastrophically expensive for an employer.
When an employer takes disciplinary action it needs to follow the ACAS Code of Practice on Discipline and Grievances. An unreasonable failure by an employer to follow that process can lead to the compensation in unfair dismissal cases being increased by up to 25%. The burden of proof in the first instance is upon the employer to prove that what the reason for termination was (misconduct in these cases) and that it was reasonable in all the circumstances for the employer to rely upon that as a reason for termination (s.98 (4) Employment Rights Act 1996). An employer will need to show that the decision to dismiss was within the range of reasonable responses available in the circumstances to avoid an adverse finding.
In the area of social media use and abuse, there is plenty of scope for controversy. To mitigate the chances of an employee bringing a successful claim in the Employment Tribunal the employer needs to set out what is and is not acceptable. If this is made clear to all staff (and the policy is implemented consistently and fairly to all staff) it will reduce the chances of a successful claim by an aggrieved employee. A recent case (Stephens v Halfords Retail plc, unreported) reminded employers that blind reliance on a social media policy to dismiss a member of staff will not be enough. The employer will need to act reasonably in applying the policy. In that case the employee had posted unfavourable comments on Facebook about the company’s restructuring plans but had shown contrition when he realised that he had breached the social media policy, removed the comments straightaway and promised not to repeat his actions. He was dismissed but won his claim for unfair dismissal.
So, what should the policy contain? Should it be a detailed set of rules or merely guidelines? Microsoft’s social media policy is minimalist: “Blog Smart”. The Australian Broadcasting Corporation apparently has four elegant and succinct guidelines:
– Do not mix the professional and the personal in ways likely to bring ABC into disrepute
– Do not undermine your effectiveness at work
– Do not disclose confidential information obtained at work
– Do not imply ABC endorsement of your personal views
They encapsulate the major issues in a nutshell. However, for some businesses they may be too brief for comfort. Each policy should be drafted according to the needs of each business and, in my view, should have the aim of reminding employees that whilst their activities on social media might take place in a virtual vacuum, the consequences will be felt in the real world.
Probably the most important issue is to avoid reputational damage. Policies should make it clear that disciplinary action will follow if an employee misuses social media either at work or after hours, on work provided equipment (laptops, desktops or smartphones) or kit belonging to the employee. Employees should be made aware that abusive, threatening or defamatory communications will not be allowed, whenever posted. Privacy arguments are not likely to be successful – putting a status update on Facebook, let alone a blog post or a tweet – is sending that message out into the public domain, even if the sender thinks it will only get distributed amongst their Facebook “friends”. It is always difficult for an employer to impose disciplinary sanctions on an employee for out of hours incidents, but the nature of social media is such that once the comment is made or photograph uploaded, the damage is done. A social media policy needs to make clear that disciplinary sanctions will be imposed even if the employee was acting in their own time, on their own equipment.
The policy should fit in with the employer’s other existing policies, such as the diversity policy. Most employers who have got well-drafted employee handbooks will have a policy confirming that the business is committed to equality of opportunity in the workplace. If a homophobic or racist comment would not be tolerated on the shop floor, why would it be in cyberspace?
If employees are tweeting or blogging on their own accord about their industry or profession (such as I do with my own blogs) they should be asked to put a note on their profile to say that the views expressed are their own and don’t reflect the business’ own views. This may also be a good reason to have people tweeting in their own name even when tweeting on behalf of the business instead of on the corporate account – to minimise embarrassment if something goes wrong.
The employee should be educated on the policy and asked to sign it to confirm they have read and understood it. This was what did for Ms Preece in the recent case of Preece v Wetherspoons. She was a pub manager and suffered some very unpleasant verbal abuse at the hands of two irate customers. Subsequently she posted some unpleasant remarks of her own about the customers, neither of which identified the pub or employer directly but did identify the customers in question. She was dismissed and lost her claim at the Employment Tribunal because she had signed up to the social media policy which stated that disciplinary action would be taken where comments on Facebook (in this instance) were found to lower the reputation of the organisation.
Should an employer ban use of social media in the workplace? Unless there is some very significant reason to do so (such as where confidentiality is of the highest importance, perhaps in a price sensitive area in an investment bank) then it is probably counter-productive to have a blanket ban. Usage might be confined to lunch-breaks to ensure productivity and bandwidth is not adversely affected, but any employer that purports to be a modern forward thinking company is not going to look like that at all if there is a blanket ban on social media. Alternatively, if the business wants to use social media to promote itself preventing employees’ own personal use of the same tools is not going to look very forward thinking either.
Another thorny issue is whether line or senior managers should engage with employees on social media platforms, such as becoming Friends with them on Facebook. Much will depend on the culture of the business but, on balance, it is probably best not to. This does mean that the employer will miss out on “intelligence” on what is really going on in the firm but it might be best not to be privy to that, or for it to be known that the employer knows it. Instead an employer would be wise to include a clause in the contract of employment imposing an express duty on all employees to notify management if they become aware of a breach of the social media policy.
Finally, what of Linked In contacts? The law as set out in the case of Hays Specialist Recruitment Holdings Ltd & anor v Ions & anor  IRLR 904 is that any contacts made during the course of business for the employer will be confidential information and thus belong to the business when the employee leaves. That was a case on disclosure and Mr Ions was ordered to disclose those contacts on Linked In that he had generated in his capacity as an employee. It is a grey area but the business will be in a much stronger position to obtain disclosure of such contacts if the social media policy makes it clear that such contacts belong to the employer.