Social media in the workplace

Mark Stevens is an associate in the employment department of law firm VWV. Mark Stevens is an associate in the employment department of law firm VWV.

Social media can be extremely useful in the workplace with many businesses using platforms to promote their brand, writes Mark Stevens.

However, the issue of individual members of staff using social media in the workplace is still one which is widely debated. Recent media stories have highlighted the potential damage which misuse of social media can have; both for employees and for the businesses that they work for.

Naturally a key concern for employers is that prolonged use of social media will damage employee productivity. But perhaps one of the most significant risks of social media is, however, the potential for inappropriate use.

Communication tool

Misuse can translate into internal difficulties with problems arising due to bullying and harassment via social media. It is common for social networking sites to be used by employees as a communication tool, both in and outside of working hours, however there is a risk that employees cross the line with conduct amounting to harassment, discrimination or other unlawful behaviour. This can have significant consequences for employers as they could potentially be found liable for the actions of employees in these circumstances.

Employers should develop a policy which sets out what is acceptable when employees use the internet, email, phones and networking sites. This should remind them that misuse of social media or inappropriate postings can amount to misconduct, for which they might be disciplined.

The policy should tackle the firm’s view on what is acceptable in terms of personal use of social media, as well as how the organisation will deal with employees who post inappropriate content on social media. Where staff are expected to post on the organisation's behalf, appropriate rules should be set on the topics that can be covered. Any such policy should have a particular focus on what type of information the employee can reveal about the organisation.

Reinforce

Any monitoring of staff should not go further than necessary and employers should avoid implementing restrictions which are invasive or impractical. Where necessary, employers could also consider implementing training for other members of staff to reinforce the issues raised in policies.

When a breach of social media policy occurs, employers should seek to deal with any online matters in the same way that they would deal with offline issues. This might mean going through a disciplinary process employee where necessary. It’s important to be consistent and employers should be willing to be flexible where the harm suffered by the business is minor.

Case law here suggests that some employers have been too severe in their reaction to employees' posts. One example of this is Whitham v Club 24 Ltd in which an employee made derogatory comments about her workplace on Facebook, one of which stated: 'I think I work in a nursery and I do not mean working with plants'. The employee was dismissed but an employment tribunal found that this dismissal was unfair and that the comments made by the claimant on social media were 'relatively minor'.

Disciplinary record

Where a disciplinary process does take place, case law suggests there are various factors which employers should take into account whilst making their decision, such as an employee's prior disciplinary record.

Other factors to be considered include the relationship between the employee/employer and whether the relevant action has broken down the trust between the two. Many employment tribunal decisions also emphasise that there must be a genuine belief that there has been damage to the employer's reputation rather than an assumption that the conduct is likely to cause damage.

Employers who can show that they have reacted reasonably and followed the company's procedures in the disciplinary process certainly have an increased chance of success when facing any employment tribunal claims in this area.

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