ACAS recently published a research paper on the use of social media in the workplace, called “Workplaces and Social Networking: The implications for Employment Relations“, as well as some very useful guidelines on how to draft a social media policy.   It’s also about time that ACAS provided some guidance in what is becoming an increasingly difficult area.

The research paper is well worth a read for anyone interested in this area or not persuaded of the need for a social media policy and it contains nine recommendations for implementing a policy. It was commissioned from the Institute for Employment Studies and comprises a review of academic papers, surveys and reported incidents over roughly the last ten years.   It is not limited to just the employment law issues raised by social media usage, but also cyber-bullying, access to and use of the internet in the workplace, the perils of using social media in the recruitment process, the issues to think about in formulating a policy and provides some useful conclusions.

For me there are two particularly significant points that come out.

Firstly, a policy on social media usage has to be considered in the context of the business’s wider policies. For instance, cyber-bullying is still bullying.  Discrimination online is still the same as discrimination offline.  Employers need to have policies to deal with these issues whether they happen in the staff canteen, the car park, or on Facebook.  The issue with cyber-bullying is that it can take place over a wider area and time frame, i.e. outside the workplace.  Why should that concern an employer though? If bullying is occurring via Facebook or other platforms and the common link between the perpetrator and victim is that they both work for the same employer, the poor old employer might be vicariously liable if it took no steps to address it once it became aware of the problem.

The report suggest employers could offer a 24/7 helpline or “help point” to guide cyber-bullied employees.    Larger employers may have this facility anyway and it is a “facility” that helps make the employer look soft and cuddly, but it won’t be an option for smaller employers who can’t afford to set one up or buy access to the helplines that exist on the market.  Neither will it enable an employer to escape liability if a claim does arise.  The only way of mitigating (not removing) that risk is for;

“Employers … to consider extending their workplace bullying policy to explicitly cover cyber-bullying both within and outside working time.” (p.29)

None of the three case studies the report looked at (HMRC, ACAS or BT) had specific, stand-alone cyber-bullying policies, instead they relied on their existing anti-bullying policies.  What this demonstrates is that employers need to have a joined-up approach to the issue.

The second stand-out issue was to do with whether employers should adopt a blanket ban on social media at work and it was timely because, according to another survey, this time carried out by Clearswift, a software security firm (and reported on by the online People Management journal)the number of employers now preventing staff accessing social media in the workplace has more than doubled over the last year, mainly because of security fears.  Managers are said to be concerned about “high-profile data leaks”, although my guess is that that is a smokescreen for concerns about workers’ productivity being compromised.

The conclusions to the ACAS report  suggest that a blanket ban is pointless;

“in some of the high-profile cases of unfair dismissals for what employers believe is inappropriate  use of social networking sites, the location of the employee when posting comments is immaterial. This potentially means that any employers who believe they have protected themselves through a blanket ban on use of social media through company IT systems may be misguided. This also means that employers who do not provide IT access to some staff or do not have IT in their workplaces cannot afford to ignore the issue.”(p.30)

This is probably the greatest challenge to employers – how do you deal with bad behaviour outside the office that impacts upon the business?  Education of employees is the key, backed up by clear guidelines must be the answer.  This is all sound, sensible advice but you can boil it down to what I call “the pub test”.  It’s simple:  if you were in a pub and your boss was standing next to you, would you call him (or her) a pillock, or worse?  Probably not.  Why then do it on a social network, especially Facebook, where your boss may be one of your “friends” or, just as likely, one of your “friends” will pass on your offending comment to your boss?  Once it’s out there, it’s out there.

What I find refreshing about the report though is that it is not all negative.  Indeed it recognises that there are positives to be drawn from social networking;

“it should also be considered that social networking can have specific benefits in the employment relations context. For example, blogging can be a positive action, allowing employees to present the human face of a company, if an employer is relaxed about allowing employees to blog. More widely, one of the main benefits of social networking, according to the organisations contacted for this research, is the potential business benefits of this medium, which are not yet fully understood. Allowing employees the freedom to use social networking sites can therefore be a positive step, help to develop the workforce’s knowledge of social media, and be part of a wider strategy of digital engagement with customers” (p.31)

The comments on blogging are particularly welcome! Employers that ban employees from blogging on work topics are losing out on a free source of publicity.  To say that employees might say the wrong thing misses the point – educate them on what shouldn’t be said and let them get on with it! Businesses need to come to terms with social networking for a variety of reasons, not the least of which is that it might actually bring some benefit.

For more reading on how social media can benefit businesses one of the best and most enthusiastic sources of information and advice around is lawyer-turned-consultant Julian Summerhayes.

The report finishes with nine recommendations, which include the need for policies to be simple, to se tout what is acceptable behaviour online, and it to be drafted in consultation with the workforce/trade union to gain legitimacy, amongst others.

ACAS also helpfully published a document summarising the report  entitled “Social Networking and … How to develop a policy”, which  comprise two sides of A4 paper and give seven concise reasons why an employer should have a “written policy on the ‘acceptable use of social networking at work’. These reasons include enabling the employer to protect itself from liability for the actions of its workers, comply with the law on discrimination, helping line managers manage performance and, crucially, give employees clear guidelines on what they can and cannot say about the company.    The document then gives advice on the issues the policy should cover, which include network security, acceptable behaviour for use of the internet and email, smart phones, blogging/tweeting and social network sites, data protection and monitoring.  A social media policy should set out how use of social media fits within the employer’s own business objectives.

For any ostriches out there hoping the issue of social media will go away, it won’t.  A good read of this very useful ACAS papers will be a good introduction to the steps to take.

Related posts:

1. Why Employers need a Social Media Policy
2. Old News Rehashed:Employers Warned to Monitor Social Media Usage at Work
3. Social Media in the Workplace

The ACAS Report on Workplaces and Social Networking originally appeared on Jobsworth by Michael Scutt on 09/09/2011.

Everyone is talking about social media these days and no longer is it confined to the purely social.  Many businesses are using it to promote themselves; good heavens, even lawyers are getting into it.  But use of sites like Facebook, My Space, You Tube and micro-blogging sites like Twitter present multiple challenges to employers. 

There have also been well publicised examples of employees being caught out by their status updates on Facebook – like the woman who complained that she hated her boss and called him a pervert, forgetting that he was one of her “friends” on Facebook.  He read the comments and a beautiful friendship was ended.  Other employees have pulled “sickies” and posted that onto Facebook.  Bad move.  Not only will the boss probably get to hear about it, the employee will become the laughing stock of the internet as millions of people all over the world receive the news of the indiscretion via round-robin emails.

On one level employers may not be persuaded of the merits of Web 2.0 and the plethora of seemingly time-wasting opportunities that it provides.  There is a great risk that staff could become inefficient and unproductive in surfing Facebook all day, or watching video clips on YouTube and that must be particularly galling for those employers who see no business application for these new technologies.  The temptation might be to come down hard on employees but that may provoke claims for constructive dismissal or unfair dismissal.  In an environment where for some people, surfing Facebook is as natural as reading a newspaper or a novel, an outright ban on accessing social media may be unreasonable.

For enlightened employers who do see the benefits of Twitter, YouTube, Facebook and the humble blog, the challenges are increased.  Not only is there the risk that some employees will take advantage to spend time promoting themselves rather than the business, they may post inappropriate comments on the web and severely damage the reputation of the business.   Worse still, the employer may end up on the wrong end of an action for defamation.  No longer is it enough just to have a policy covering access to websites and use of email (and don’t forget to include mobile phones and Blackberrys/iPhones in those policies).

In my view, employers face three challenges;

1. Excessive use of social media leading to loss of productivity

      2.    Risk of reputational damage/unwanted litigation to the business

      3.    Avoiding inappropriate use/abuse of social media without upsetting employment relations

Employers need to develop a strategy for use of social media in their business. This should not only cover how the business intends to exploit web 2.0 for its own purposes, but also a policy governing how employees should use it, again not just for business purposes but also for private usage.  Don’t forget that younger members of staff (“digital natives”) may be much more in tune with social media than older people.  In order to avoid grievances or unwanted employment tribunal claims be consistent in applying the policy.  As a solicitor who often advises employees, I frequently hear clients say that “Flossy was only given a written warning for the same thing” when they’ve been dismissed.      

The policy needs to take account of how the business wants to exploit social media and a “one size fits all” model isn’t going to work.  Instead the business needs to ask itself these sorts of questions;

1. Do we want to use social media to promote the business?
2. Who in the business will be responsible for using social media?  Senior management or more junior staff?
3.  What guidelines do we want to set them (these will probably need to be more specific for more junior staff)?  The guidelines will need to go beyond banning obscene or discriminatory comments and give guidance on how the business wishes to be perceived in the wider-world.
4. How will usage be policed and what sanctions will be put in place for misuse or abuse?
5. Will usage of the company’s computers be allowed for private use of Facebook, Twitter, etc?  If so, will usage be restricted to lunch-breaks or before/after work?  A complete ban may be unenforceable or risks causing ill-feeling.

It’s not an exhaustive list and I would be pleased to hear from anyone with additional questions that ought to be added on.

To be successful, all users will need to be “on message”.  In turn this may mean getting all users to “brainstorm” to devise the “voice” of the business.   Social media offers massive potential for businesses to communicate their message, develop their identity and build their brand.  Having a successful social media policy is at the heart of getting that right.

I would welcome your comments on any of the above and if I can assist further please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk

Related posts:

1. Why Should Employers have a Social Media Policy?
2. Old News Rehashed:Employers Warned to Monitor Social Media Usage at Work
3. Social Media in the Workplace

Why Employers need a Social Media Policy originally appeared on Jobsworth by Michael Scutt on 26/01/2010.

I’ve got to admit my ignorance, I’ve only just discovered the verb “to dooce” and what a great word it is!  There are various definitions but most include ”to lose your job because of something that you wrote on your blog”.   Rather incongruously, it can also mean to be afflicted with constipation, although if you were about to lose your job because you spilled the beans on your employer,  it’s unlikely that constipation would be your main concern. 

It was the recently reported case of Kimberley Swann, the 16 year old girl from Essex, who was fired from her job as an adminstrator because she described her job as ”boring” on Facebook that brought me up to speed with  this addition to the language.  For those who missed the story, Miss Swann worked for a company called Ivell Marketing & Logistics in Clacton  which is, I’m sure, a  fun and exciting place to work.  She had only been there three weeks when she posted an entry on Facebook stating that her job was “boring”.  Remarkably she didn’t even name her employer and it was only her colleagues with access to her Facebook page that put two and two together  and informed the company.

She was sacked on the basis that her comments were a “display of disrespect and dissatisfaction [that] undermined the [working] relationship and made it untenable”.  In other words a breach of the implied term of  trust and confidence that needs to exist between employer and employee.  Tellingly Kimberley had only been employed for three weeks and therefore had not acquired her employment rights.  In particular, because she had not got 12 months continuous employment experience with the company, she could not sue them for unfair dismissal. 

In my view had she been able to sue them the employers would never have taken this action.  It was clearly unfair.  The comment was not made during work hours but when she got home, so there couldn’t have been any issue about her not having her nose to the grindstone whilst actually at work.  Furthermore she did not mention the company’s name  online so the effect of her words would be very limited indeed.  

Finally, from the reports I’ve read the employer did not undertake any investigation or disciplinary process. Under the current law (which  will change on 6th April next)   that makes for an automatically unfair dismissal (had she been eligible to apply).

Many employers now seem to have rules and policies about the use of social networking sites during working hours (Jobsworth, of course, has few friends so the issue doesn’t arise for him) and more general internet usage policies have been in the workplace for as long as we’ve had the internet.  Repeated breach of such a policy might be a cause for dismissal after a proper investigation and appropriate warnings had been given.  Using the company’s computers to download pornography would constitute gross misconduct.  Employers need to consider carefully how their internet usage/social networking sites policies operate and what sort of behaviour they want to prevent, but I cannot imagine any policy being able to prevent what is, after all, probably just fair comment made outside work hours and not using work equipment.

The employer’s actions were really a vast over-reaction.  The TUC General Secretary, Mr Brendan Barber, said employers needed to have thicker skins when dealing with comments on social networking sites and that they wouldn’t dream of following their staff to the pub to see if  they  “were sounding off about work to their friends”.  Quite right too.  However, having read the report of the story in The Mirror  I wonder if the key to the story isn’t with the sentiment contained in the comment but in the actual words she used.  Apparently she wrote “first day at work!! So dull … im so totally bord (sic)”. 

One further definition of dooce is “to write repetitively on a subject for at least four years”.  I’ll be bearing that in mind from now on.

No related posts.

What the dooce? originally appeared on Jobsworth by Michael Scutt on 11/03/2009.