Employment & Pensions Blog: Top tips on managing (mis) use of social media in the workplace

With the growth of social media allowing individuals to freely share their views online for all to see, it raises questions on how this sits in an employment context. The key issue for employers is to consider when it is reasonable to initiate disciplinary action for an employee’s social media posts in and outside of the workplace, and how to maximise the chances that dismissal (or any other sanction applied) will be within the range of reasonable responses available to an employer. 

The Legal Pitfalls

Generally, if the social media posts go against the employment relationship and either impacts the company, its staff or the employee’s ability to do their job, this could be deemed a conduct issue. Employers should deal with such issues in line with their disciplinary procedure. However, employers need to carefully balance their business interests against employees’ right to privacy, freedom of expression and other employment rights, to minimise the risks of any ramifications against them. We have listed below some of the common legal pitfalls employers fall into: 

1. Privacy – If employees are posting on their personal accounts and devices, they will expect a reasonable amount of privacy. Employers therefore need to ensure that by monitoring or accessing employees’ social media posts, they are not infringing on this right. 
2. Discrimination and Harassment – Employees have a right not to be discriminated against or harassed because of a protected characteristic, so employers need to ensure that these rights are not infringed. That said, employees are also entitled to the lawful manifestation of their protected beliefs, even if such beliefs are controversial and go against the company’s views. Employers are required to carry out a careful balancing exercise when dealing with conflicting beliefs. 
3. Reputational Risk – Even if employers believe a post would likely cause the company reputational damage, they need to ensure that taking action against the employee does not breach their employment rights, particularly if the employee is clear from their posts that their views are their own. 

Our 5 Top Tips 

Here are our 5 top tips to help employers protect their business against the risk of increased misuse of social media: 

1. Raise awareness – Employers should clearly communicate to all staff their company’s expectations for standards of conduct when using social media (within and outside the workplace) and emphasise that this also applies to posts made from their private accounts using their personal devices. 
2. Clear and robust social media policy – Employers should have fit for purpose social media policies which clearly set out appropriate use of social media in and outside the workplace. Policies should also clearly define the parameters of prohibited use. Employers are advised to provide examples of what could constitute misconduct or gross misconduct. These steps combined will help strengthen an employers position when determining if an employees conduct can give rise to a fair reason for dismissal.
3. Training – Provide adequate training to all employees on social media usage, as well as on the social media policy itself, and ensure that refresher training is offered at regular intervals to remind employees of what they can and can’t do.
4. Disciplinary Policy – Make it clear that any definition of gross misconduct within the policy includes a breach of the social media policy and that this could lead to disciplinary action, with dismissal as a potential outcome.  
5. Confidentiality – Have clear confidentiality clauses within all employment contracts which prohibits employees sharing certain confidential information and that a breach of this could lead to disciplinary action. 

Comments

Employers are advised to err on the side of caution when dealing with social media misuse and ensure that each case is assessed on its own merits, as any outcome is highly fact sensitive. What might be reasonable in one case may not be in another. However, following these tips will assist employers in minimising risk to their business. 

If you require any further assistance or support, please contact a member of the Employment Team.