What are the legal risks associated with using social media in the workplace? This blog delves in to the issue.
Social media has transformed the way we communicate, allowing individuals to share their thoughts and opinions with a vast audience, regardless of geographical boundaries. However, if you also factor in the ease at which a private comment or post can be shared with the possibility of it going viral; in that case, the damage can be significant and happen swiftly.
Social media is, in some respects, a double-edged sword for employers. Having a social media presence is essential for promoting your brand; otherwise, you risk being left behind by competitors. Unfortunately, however, organisations don’t always give enough thought to how social media should be used and controlled, whether that relates to employees posting on their own accounts outside of the workplace or where employees are using corporate accounts as part of their day-to-day role. Without adequate protection to guard the organisation and reputation against abuse, the misuse of social media can pose a significant risk, whether inside or outside the workplace.
The risks to the organisation when employees use social media
Reputational damage
One of the most significant risks to businesses is reputational damage. A single post by an employee can be shared quickly and widely, potentially causing harm to an organisation’s reputation. Employers and HR professionals need to be careful when taking disciplinary action based on social media postings and should only do so if the posting directly impacts the employer’s business rather than a posting that the employer disapproves of. Employment Tribunals will look closely at an employer’s justification for taking disciplinary action based on damage to its reputation or bringing it into disrepute. They will expect substantive evidence of this rather than mere speculation.
Harassment and cyberbullying
Another risk associated with social media is harassment and cyberbullying. Abusive and offensive comments made by one employee about another on social media may constitute harassment and, as such, be actionable under the Equality Act 2010 if related to a protected characteristic and was done during that person’s employment. Harassment or bullying online can also lead to a claim under the Protection from Harassment Act 1997 where there is no requirement for the conduct to be linked to a protected characteristic (although there must have been more than one occasion of the harassment or bullying). Employers can be held vicariously liable for their employee’s actions if the actions occur at work and during working hours. However, harassment and cyberbullying often occur outside the workplace and on an employee’s own equipment, and therefore employers and HR professionals should make it clear in their bullying and harassment policies that online harassment will be treated as a disciplinary issue in the same way as harassment in person.
Breaches of confidentiality
Open access to social media, whether at home or work, also raises concerns about potential breaches of confidentiality. Employees owe implied contractual duties of fidelity and confidentiality to their employer, and any information an employee posts on a public forum about their employer’s business can give rise to a breach of those duties. For example, a disgruntled employee revealing their employer’s trade secrets in a blog or post could be a disciplinary issue that could result in dismissal.
Impact on productivity
There is a risk of a downturn in productivity when employees spend too much time on social media sites. This risk can impact both the employee’s performance and the organisation’s bottom line. Additionally, former employees may use social media to bypass post-termination restrictions, potentially causing harm to the organisation.
Private vs corporate social media accounts
There has effectively been a blurring of the private and public worlds that never existed before social media. Where previously, an employee would vent their frustration down the pub after a ‘bad day’, nowadays it is so easy for an employee to fire off a tweet or post something which in that scenario would be easily forgotten. Unfortunately, with social media, not only does the post remain but by the time the employee tries to remove it, it may have already been shared. It is fair to say that social media carries a mistaken expectation of privacy. It’s not private if an employee posts a comment and shares it with 100 of their followers.
If an organisation actively encourages its employees to use social media for work-related purposes, such as developing business contacts professional networking sites or blogging on behalf of the organisation it is important for the organisation’s social media policy to explain the potential legal risks. The policy should clearly state that employees must not disclose confidential information or infringe on the copyright or intellectual property rights of others, such as reposting user-generated content without permission. In cases where employees are authorised to blog or tweet on behalf of the organisation , it may be wise for the organisation to restrict this activity to a select few individuals and include a disclaimer indicating that the expressed views do not necessarily represent the opinions of the employer.
Balancing business interests and employee rights
Whilst you clearly cannot prevent people from posting and using social media as it is such an integral part of daily life, at least having a social media policy will minimise risks and strengthen the employer’s position in case of misuse. A policy will send a clear signal about the employer’s expectations for employee use of social media. At a minimum, it will make its employees aware that posting on social media or personal blogs, even in their spare time, may give grounds for disciplinary action, including dismissal in certain circumstances.
To bring the policy to life, employers should consider social media training for employees. Consideration should also be given to training for HR staff concerning appropriate and effective monitoring and enforcement of the policy (under employees’ privacy rights). Organisations should ensure a consistent approach to treating harassment and bullying online with the response to harassment and bullying in other contexts. It is no less severe simply because it takes place online.
Can staff be dismissed for breaking the rules?
Generally, employers should handle social media misconduct in the same way as any other misconduct. Misconduct often falls into two categories, namely inappropriate behaviour exposed through social media and derogatory comments about the workplace posted on social media.
Where work-related misconduct comes to light via social media, employers may legitimately take disciplinary action against an employee, including dismissal, even if the conduct happens outside of work. If something is posted (whether the employer is informed or reacts to its own findings), the key question to ask is ‘is it relevant to the job and reliable’, and whether the conduct affects the employer/employee relationship or the employee’s ability to perform their role. If so, further investigation should follow.
However, employers usually have limited grounds to take action against employees for activity on their own equipment outside of working hours that did not cause reputational damage to the employer.
Employees who violate the employer’s bullying and harassment policy may be subject to disciplinary action, including dismissal, similar to harassment or bullying in person.
What happens if an employer oversteps the mark?
Employers should exercise caution in taking a heavy-handed approach towards social media posts by their employees, as this is unlikely to find favour in any subsequent Employment Tribunal if the posts do not defame the employer or breach confidentiality, and if they are only read by a limited audience.
Employers must therefore differentiate between material that damage the employer’s reputation, breaches confidence or disparages a fellow employee, and those that are merely unfavourable opinions.
If the material is not actually damaging to the employer, in that case, it is unlikely that the relationship of trust and confidence will be so seriously undermined as to permit the employer to dismiss. Nonetheless, employers may be entitled to treat posts that bring the business into disrepute as misconduct, in which case disciplinary action may be appropriate.
In determining whether dismissal is a legitimate course of action to take and judged to be fair by an Employment Tribunal, factors such as the nature of the employee’s job, their seniority, the seriousness of the alleged misconduct, the nature of the employer’s organisation, the terms of the employer’s social media policy, the disclosure of any confidential information, the risk of reputational damage to the employer (including the number of people likely to have seen the post), the likely impact on the employee’s job and any mitigating factors, such as the employee’s service record, cooperation during the disciplinary process and contrition will be taken into account.
Implementing social media policies
This area of law is constantly evolving, and case law to date has demonstrated that employers with social media policies in place will be on firmer ground when disciplining employees for online comments or conduct than those who do not. However, employers should be wary about drawing up policies that are too restrictive, as this may negatively impact employee morale and retention. Ultimately, employers should not be overly concerned about occasional negative comments or frustrations expressed by employees on social media, as overly controlling policies may lead employees to seek employment elsewhere.