Barely a week goes by without one of the Employmentor team receiving a call about employee use (or misuse) of social media.  In addition to queries about use of social media websites at work, we are receiving increasingly more frequent queries about what employees can and cannot post (either about their employer or otherwise) on such websites, and what action employers can take in response to any posts.

The problem

For employers, the unstoppable rise of social media sites such as Facebook, Twitter and LinkedIn present new problems.  Employers have to consider now what they should do (and what they can do) when employees post content that is critical of their employer, when an employee’s private posts are offensive to wider audiences, and when employees use social media to bully or harass other people (whether that be the wider public or work colleagues).   Additionally, issues may arise where employees post comments which are not consistent with company views, may breach confidentiality, or simply may make inaccurate posts or posts that contain numerous spelling errors (not ideal for instance, if you are an editor on LinkedIn).

Most employers would rather not waste management time dealing with disciplinary or other issues that arise out of a thoughtless social media post.  Patching up the reputational damage that could ensue if a post goes “viral” is not something any employer relishes, and, in some circumstances, an employer could actually be held liable for an employee’s actions in bullying another person via social media.  All in all, one misplaced social media post by an employee could result in a lot of wasted time and money for an employer.

So what can you do?

If possible, prevention of such posts is what an employer will strive for.  Communication to employees is key – both on what standards you expect them to adhere to in relation to social media and how far that duty extends (e.g. solely on their company LinkedIn page, or on their personal Facebook page too?), and what action will follow if they don’t meet those standards.

As a first step, we advise that all employers have a social media policy in place.  This sets out what standards employees are expected to adhere to when using social media websites, guidelines as to what sort of content is acceptable (and unacceptable) for posts, and whether or not the use of social media is permitted during working hours/on work computers.

Provide training to employees on the use of social media and remind them of their obligations under the policy.  We are always surprised at the lack of common sense exhibited by some employees; by providing them with clear guidance and directing them to a policy, there can be no excuse that an employee “did not know” their behaviour was inappropriate.

Once the policy is in place, enforce it.  This means taking disciplinary action (if appropriate) against employees who breach the social media policy.  This does not have to be dismissal, and it may not be legally possible to dismiss, but a strong party line will make other employees think twice about breaching social media rules.

Depending on the circumstances, employers can be firm in their approach – employees have been disciplined, and dismissed, for posting negative comments about their employers on social media websites.  For instance, you may remember the press stories of the teenager who called her job “boring”, and a number of Virgin Atlantic’s cabin crew who were less than complementary about their “chavvy” passengers and who criticised safety standards; those dismissals were found by the Employment Tribunal to be fair.

When considering whether disciplinary action is appropriate (and the appropriate sanction), employers will need to consider a number of factors, including the content of the post in question; whether it is possible to identify who the employee works for from their social media page; how many followers the employee has and what their privacy settings are; whether the conduct impacts on the employee’s ability to do their job (for instance, have they expressed that they are drunk/hungover and then turned up for work as a driver?); and whether the employer has communicated the rules about social media postings to their employees.  After weighing up all of these considerations, it may be appropriate to take firm action against the employee for their post.

How can we help?

Employmentor subscribers can log-in to the Employmentor website to view our new Social Media Policy, which can be downloaded for adaptation, implementation and use (find it in the Discipline and Grievance section).

If you are an Employmentor subscriber, if you do encounter any issues with social media, please be in touch with one of the Employmentor team.  We are happy to advise on the appropriateness of the content of posts, whether disciplinary action is appropriate and how firm you can be in terms of sanction, and to provide assistance throughout the disciplinary process. Equally, if you would simply like to discuss the content of this article in more detail, please do contact us.

If you are not a subscriber and would like to find out more about how the Employmentor team can help you, please contact us on email hidden; JavaScript is required.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.

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