Social-media policies must be clearly set out

SOCIAL media can be a powerful tool for many businesses, enabling them to engage directly with their customers and other stakeholders in an immediate, personal and targeted way. This is to be welcomed and encouraged.

But employers also need to be conscious of the risks that social media can present.

For one, the personal use of social media during working time impacts on productivity. Other more serious risks include reputational damage, breach of confidentiality, breach of security, defamatory comments, unlawful discrimination and the risk of cyber bullying and harassment.

Indeed, an employee’s use of social media may have serious legal repercussions for your business, and the implementation of a social media policy is therefore a necessary risk management tool.

But what should a social-media policy include?

Firstly, the policy should address whether or not the use of social media is banned in the workplace. If it is not banned, the policy should set out what access to social media is allowed and when access is permitted.

If access is to be restricted, the precise restrictions must be stated. The policy should explain the employer’s monitoring of the use of social media sites. Wholesale monitoring will not be appropriate and should be in accordance with data-protection principles.

There should also be clear guidelines for interaction with social media at all times, since usage in private time can also cause damage to a business. It is important for the policy to address the non-disclosure of confidential information and to underline the necessity of ensuring that the use of social media does not bring the employer into disrepute.

The policy should also instruct employees not to make any derogatory, false or discriminatory comments about the business and its clients and employees. Employers can be held vicariously liable for the actions of employees.

It is incumbent on an employer to take reasonable steps to protect its workers against discrimination and harassment from colleagues, even if this occurs outside the workplace and outside working hours.

Perhaps the strongest message needing conveyed by a social-media policy is that employees should be mindful that anything posted online via social media is likely to be available for public consumption – there should be no expectation of privacy. If it would not be appropriate to publish your comments in a newspaper, don’t post them online.

It is important the employer’s social-media policy warns that contravention of the policy may lead to disciplinary action and potential dismissal. The case of Preece versus JD Wetherspoons involved the dismissal of a pub manager who made derogatory comments on Facebook about two customers.

The employer’s disciplinary policy cited ‘bringing the company’s name into disrepute’ as an example of gross misconduct, and the internet and email policy stated that disciplinary action could be taken if blogging damaged the company’s reputation.

Ms Preece contended that her comments could only be viewed by 40 to 50 friends but a tribunal dismissed her claim of unfair dismissal, concluding that the employer’s response was justified due to reputational damage.

In contrast, in Whitham versus Ventura, the tribunal upheld Ms Whitham’s unfair dismissal claim. She had posted comments on Facebook criticising working conditions and colleagues.

The employer dismissed the employee as it was concerned about potential damage to its relationship with its main client but it had not sought the views of the client, nor considered alternatives to dismissal, such as demotion. When considering dismissal, the employer should consider carefully the specific circumstances and the proportionality of the penalty.

The effective implementation of the social media policy is key. This is likely to entail distribution and display of the policy and the provision of training to ensure that it has been explained and is understood. An employer who disciplines an employee for acting in breach of a social-media policy which has not been communicated effectively is on shaky ground.

Finally, once you have your social media policy in place, it is also essential to regularly review your policy to check that it reflects the changes taking place in the fast-changing social-media world.