Social media can be a useful business tool for networking with clients and customers, marketing and promoting brands and keeping on top of industry trends but it also has its downsides. HMV is a good example. Disgruntled employees used the HMV twitter account to send tweets which then drew the unwelcome attention of the press to HMV "We're tweeting live from HR where we're all being fired! Exciting!!" "There are over 60 of us being fired at once! Mass execution, of loyal employees who love the brand."

The HMV experience should serve as a reminder of the potential damage that can be caused through the use or the misuse of social media at work. In this article we take a look at some of the key issues facing companies and how problems can be tackled.

Outright ban or full access?

Employees using social media, for personal use during working hours are obviously not being as productive as they could be. Companies should consider the extent they will allow or encourage access to social media sites. Some Companies block access to all social media sites or restrict access to before and after business hours. Those that do not block access, need to set clear boundaries on the what is acceptable use of social media sites and when they can be accessed, e.g. perhaps just to outside normal office hours. On the positive side, where employees are working long hours, twitter offers them the ability to keep in touch with friends and family. Arguably, limited access to social media sites at work will satisfy responsible employees and might lead to a more productive workforce.

Employee monitoring

Some companies monitor the use of social media sites to see how much time is being spent on these sites. This information may be being used to decide whether there are performance management issues or to collect evidence for disciplinary investigations, but is this legal?

It can be, as according to the regulations monitoring is permissible where it is “a proportionate response to the issue the company is seeking to address and the benefit outweighs any adverse effect”. That is, it may be legal as long as it is being carried out only to resolve a specific issue. If the monitoring is too intrusive then it could breach data protection and surveillance laws and it is likely to damage relations with staff if they feel that ‘big brother’ is always watching them.

If you do monitor, or are thinking of monitoring use of social media (and possibly other sites) you should carry out an assessment of the impact of monitoring. This assessment should balance the needs of the company with employee privacy rights and determine, fairly, whether the monitoring can be justified. You should tell employees that monitoring may be used and give them certain information about why and how the monitoring is undertaken. As indicated earlier, to stay within the law, monitoring must be proportionate.to the need. Where the monitoring is used in a disciplinary investigation then you should consider whether this monitoring is what a ‘reasonable company’ would undertake.

Recruitment

Whilst social media is a cheap and easy way to advertise vacancies some companies are also using it to ‘vet’ potential candidates by checking online profiles to see what candidates are doing outside of work and comparing it with what they put on their CV or stated at interview. This practice is not recommended. Making decisions based on the social media profiles increases the risk of a discrimination claim.

Cyber bullying

Another area to watch for is potentially discriminative or damaging comments made on a social media site by one employee about another employee. Companies can be held responsible for such comments even if they were made outside of the workplace.

To tackle this issue, your social media policy should detail the company’s position on cyber bullying and outline the potential disciplinary action that may be taken with employees undertaking such activities. Bullying, harassment and discrimination policies should also be updated in line with the social media policy. Having such policies in place and ensuring managers and employees are all aware of it, should provide the company with a defence that reasonable steps have been taken to prevent such discrimination occurring and make it easier to prove that any dismissal for cyber bullying was fair.

Social media dismissals

Dismissals relating to social media usage are becoming more common. They are often related to an employee’s conduct outside of work or where the employee has posted derogatory comments about the company and/or a colleague on social media. So can you dismiss someone in these circumstances?

Often the answer is yes, where it is a breach of a robust social media policy. You must treat the misconduct like any other misconduct that impacts the workplace. In deciding whether to dismiss you should consider the nature and impact of the social media comment as well as the employee’s length of service and past employment record. If the dismissal is to be justified by the damage caused to company reputation then the company must be able to show that there was a ‘real’ risk. This will take account of the seriousness of the comment, how many people, and who, saw the comment, whether the company has been identified and whether any complaints have been received.

Where employees have revealed confidential information on social media then that would be a breach of their implied duty of confidentiality which could result in dismissal. In this example, the company could seek an injunction for the removal of the comment and seek damages for any loss suffered as a result of the breach.

Whether any decision to dismiss is considered fair by a tribunal will depend on whether the tribunal believes the company acted reasonably in treating the conduct as a reason to dismiss.

Having an effective policy

So to manage the risks of social media usage the most effective tool is a clear social media policy which states what is / is not acceptable behaviour and discourages employees from certain activities. Having a policy will help you to tackle social media risks. Without a policy it may be more difficult to justify disciplining and dismissing employees for their online conduct. It is important that your policy is publicised internally, communicated to employees, applied consistently and that employees are made aware of any updates and changes that have been made. Induction programmes are a good way to draw attention to company policies and asking staff to acknowledge receipt will improve enforceability.

If you would like some assistance in writing a social media policy, etc., or have someone review the one you already have then just get in contact with us

Note. This article has not addressed the IT issues around allowing employees access to social media and other sites on their work computers. Allowing this can heighten the risk of damage to your systems through virus and hacking. You should therefore check that your IT team are aware of the level of access permitted and put in place strong software and systems to protect your systems and data.

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