Employers need clear policies on using Facebook, Twitter and LinkedIn both in and outside work
Social media can be a real challenge for employers, especially getting the right balance between the business opportunities it offers and the potential problems that can arise from employee misuse. The technology makes it much harder to see a clear dividing line between work life and personal life. Recently the Independent reported that UK police forces had had to deal with over 800 potential breaches of social media guidelines by officers and civilian staff.
So, what should employers be doing to minimise the potential risks that engagement by employees with social media may cause while still exploiting its benefits?
Excessive use of social media sites by employees during working hours can obviously affect productivity and could include uploading inappropriate materials. All employers should have a clearly worded social media policy which leaves employees in no doubt as to exactly what use is permitted at work, and also what social media activity outside work the employer considers inappropriate and the likely sanctions for breaches of that policy. Such a policy should be tailored to take account of the specific risks the employer faces.
Employees need to be aware that postings on their own Facebook accounts that damage the reputation of their employer or its customers could lead to disciplinary action being taken against them. From the employer’s perspective, it’s crucial that any action is proportionate to any damage caused. To justify dismissal an employment tribunal will want to see evidence on the impact of the posting, whether that is related to the number of hits it received, or how widely it was viewed, or whether it disclosed any confidential information. Tribunals will need to understand how the employer’s business has been adversely affected as a result of the posting.
Increasingly employees making tribunal claims on this issue rely on the Human Rights Act 1998, arguing that they have rights to privacy as regards postings made outside of working hours. However tribunals have been reluctant to support employees’ expectations of privacy, given the way that sites like Facebook operate and the ease with which emails can be forwarded on to others.
An employer can be vicariously liable (held responsible) for discriminatory acts of their employees that occur in the course of their employment. This is construed widely by tribunals and could include postings outside work hours between work colleagues. While an employer’s social media policy can cover this, its implementation should be supported with training for all employees, employees’ activities should be monitored and the policy consistently enforced.
Employers are increasingly encouraging their employees to use sites such as LinkedIn. While the site’s terms and conditions provide that individuals retain ownership of their account, UK courts have tended to disregard this and been more concerned about the confidential information involved. There has yet to be a full hearing on this point, but an employer has been successful in securing a court order forcing a departing employee to disclose a list of business contacts on LinkedIn, as this information had been secured during the course of employment and was, therefore, the property of the employer.
Employees involved in managing their employer’s social media accounts should be under an express obligation within their contract of employment requiring them to release passwords and other login details on termination.
In the case of key senior employees, contracts of employment should include restrictive covenants as well as contractual provisions regarding the ownership and deletion of client contact details.
The problems presented by social media are, in effect, just the same challenges that employers have faced previously – they are just in a new form that may be harder to understand and properly police for some. As with so many employment issues, anticipation and action are the best forms of defence.
26/08/2014 – Jane Cox (employment partner at Weightmans)