There are a number of key issues which employers should be aware of and consider in connection with their employees use of social media:
- The possible disclosure of confidential information;
- Damage to employers reputation and brand; and
- Potential vicarious liability for comments made about colleagues.
In the absence of guidance, many employees will simply not appreciate the consequences of postings on social media. The casual nature of the medium can seem to dull the senses and words said, which may cause offence face-to-face, are not necessarily seen as being offensive in social media. However, an employer can have vicarious liability for cyber bullying. In extreme cases, comments can be subject to a criminal prosecution.
The clearer the parameters established by an employer for what is acceptable and what is not, the more likely it is an employer can discipline or possibly dismiss an employee for postings on social media.
A detailed social media policy, not only distributed to staff but upon which they have had training and ideally, input, should be in place.
Employers who have not put a detailed social media policy in place are strongly recommended to do so and to consider including the following:
- Guidance as to when social media can be used in the workplace or about work. (Consider an intranet site for chat amongst colleagues or even for gripes about work which is separate from social media);
- A contractual obligation to promote the business of the employer;
- A definition of confidential information and a contractual obligation to keep such information confidential, including information about colleagues;
- An explanation and prohibition of postings which might damage the employers reputation or be regarded as derogatory or discriminatory with clear reference to the disciplinary process and potential for dismissal if damaging postings are made;
- Specific terms relating to the use and management of social media for the employers purposes;
- Contractual controls to require the employee to amend, delete or give access to social media accounts if reasonable to protect the business;
- A linked bring your own device (BYOD) policy implementing controls in respect of the employees own tablet or smart phone for example for business purposes; and
- Post termination obligations to manage social media issues.
What factors should be considered when disciplining staff
The extent to which an employer will be able to take action against an employee for their comments on social media will depend upon the following:
- The employees role and seniority;
- The seriousness of the comments;
- Whether or not any confidential information was disclosed; and
- The social media policy of the employer and whether or not it clearly prohibits the conduct alleged and had been communicated to the employee
An employer should always consider any mitigating factors presented by the employee for their conduct and any apology.
In many cases the actions of the employee may simply be treated as any other misconduct. For example, in the case of Gill vs SAS Ground Services UK Limited, an employee who was on sick leave revealed on Facebook that she was auditioning models and choreographing a fashion shown. The employment tribunal found that her dismissal for gross misconduct fell within a band of reasonable responses as required under section 98(4) of the Employment Rights Act 1996 and was fair.
There have been attempts by employees to argue that postings on social media are private. The courts have been reluctant to agree to this; generally speaking, once information is put on social media it can be treated as in the public domain.
Employees have also argued that Article 8 of the Human Rights Act, which provides a right to respect a private and family life, or Article 10, which provides for a right of freedom of expression, should give them protection. However these rights are not unqualified; they are curtailed by the rights of others. A clear policy on what is regarded as unacceptable conduct will assist the employer.
The use of social media will increase as employees expect to be able to use it both at work and home, with the boundaries merging. Clear management is necessary for a business to protect itself.
Fiona McAllister is a partner at Mundays LLP.