There is widespread use of social media by individuals both in and outside of the work place. Improper and inappropriate use carries enormous risk to you as the employer, such as liability for discriminatory comments or disclosure of confidential information. It is therefore vital that you understand the issues and take all appropriate steps to protect your business.

Social media encompasses video, audio, photographic and text technology that enables users to interact and share information on a public or private basis. Common examples include Facebook and Twitter.

Case examples

There have been recent cases where dismissal of employees for improper use of social media was considered fair and it certainly appears that this is an area where Employment Tribunals are recognising an employer’s legitimate concerns and need to protect its business. In these cases, however, there were clear policies and procedures for dealing with social media and discrimination issues and we consider that this is the most effective way of ensuring you maximise your protection against risks.

In the Lifeline Projects case (2009), an employee sent a discriminatory chain email from his home computer to another employee’s home computer, who in turn, forwarded it to another employee’s work email. The employee who first forwarded the email was dismissed for gross misconduct, namely for damaging the employer’s reputation. The Employment Tribunal considered the employee’s right to privacy but found no privacy attached to the email owing to its nature as a chain email, but in any event, when balancing the employee’s right to a private life and the employer’s right to protect its reputation, it found in favour of the employer. There was a clear policy in place covering equal opportunities and the employer relied on potential damage being caused to its reputation or integrity to justify the dismissal.

In the Weatherspoons case (2010), a pub manager complained about two of her customers on Facebook during working time. The customers had verbally abused and threatened the manager but the employer was entitled to take the view that the Facebook comments did not reflect her upset or anger at the customers, but appeared to be a joke between her friends. The manager thought her privacy settings were restricted to close friends when in fact her data was subject to a wider audience, including the customers’ relatives. The Employment Tribunal found that the employer was entitled to rely on its email and internet policy which made specific reference to use of media while at work, and in particular, use that was “found to lower the reputation of the organisation, staff or customers …” to justify her dismissal.

Social media policy

You should decide the boundaries of your policy, such as whether there should be a complete ban on personal use of social media at work, whether it should be permitted for certain types of employees, whether there should be any restrictions about use outside of work and whether it should apply to business use as well. This will depend on the nature of your business and your workplace environment. For example, many employees use social media sites such as LinkedIn to share business information and so it may not be in your interests to ban its use altogether. In the case of outside activities, please be aware that any restrictions will be subject to any damage you could suffer, for example, reputational damage or discrimination. We suggest that it would be worthwhile liaising with different types of staff when assessing the boundaries.

Give clear examples about unacceptable practices, such as reputational damage to your business or your clients’ business, disclosure of confidential information or harassment of colleagues.

Like any other policy, there is no point having it if your staff do not know it exists and if you do not enforce it! You should make it clear what the potential consequences will be if the policy is breached. Implementation needs to be consistent and it should be linked to your other policies and procedures, such as disciplinary, computer and equal opportunities. You should also carrying out effective monitory and ensure that the policy is reviewed on a regular basis.

Our Employment Team has significant experience in drafting policies and procedures as we are on hand to assist you in ensuring your business is protected.