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As mobile devices make social media sites accessible at any time, controlling use of the likes of Facebook and Twitter becomes increasingly difficult for employers and as problematic for employees to use.
For both sides of the employment relationship, potential problems exist if staff are regularly using social media while at work – and at home.
Firstly, because access to these sites is not restricted only to sitting at computers, where it may be easier to monitor, and is more often carried out via personal mobile phones – which are more usable at work – the danger is staff could be easily distracted, focusing more on social updates than the needs of their employer.
Another issue is the danger of defamation – making adverse comments about a business could be hugely damaging to its reputation. Added to that is the possibility careless comments may infringe the privacy of clients. A further potential area for trouble is derogatory chat about a work colleague could end up being subject to a constructive dismissal or discrimination claim by the staff member affected.
The potential for misuse of the channel by staff cannot be overstated. As an employer, you need to be well-prepared to deal with inappropriate use of social media by employees. As with many things, the best approach is to take action before the problem arises.
Several landmark cases have occurred over the years where employers have dismissed staff on the basis of their use of social media.
In Preece v JD Wetherspoon plc, the bar operator was found to have been justified in dismissing a duty manager whose inappropriate comments on Facebook about customers were seen by one of those mentioned.
The fact JD Wetherspoon won was largely because it had comprehensive documentation making it clear the use of Facebook in a defamatory way was a disciplinary issue.
By contrast, in Whitham v Club 24 Ltd, where an employee posted comments about colleagues and working conditions, the dismissal was found to be unfair. No complaints were made as a result of the posts and there was no evidence any damage had been caused to the employer’s reputation. A key factor damaging the employer’s case, in this instance, was the lack of any internet or social media policy that could be relied on.
So, what should you do if you find your staff are using social media at work, or even at home, and it has an impact on the business?
Problems and disciplinary action
Where you are faced with potential defamation, your first response should be to ask the individual who posted the information to remove the content.
Where this fails, you should contact the social networking site directly and request it removes the defamatory content. If the problem persists, you need to consider whether to pursue the matter in court.
The key to being able to take effective action against an offending employee is having in place well-drafted policies. It is important staff understand they should conduct themselves appropriately at all times.
An outright ban?
A complete ban on all types of social media for employees is simply not realistic, so firms should decide whether to allow access to social networking sites during working hours, either via company computers and devices or personal mobile devices.
If staff have access to work computers then personal use may be allowed during lunch hours or breaks. If use of a particular site is banned, this must be made clear in your internet policy – together with the consequences of using the site. If you intend to randomly monitor internet usage on work computers then, again, it is essential you make this clear in that policy.
Social media usage out of working hours
A well-drafted policy can help by addressing the use of social networking sites or blogs out of hours and making staff understand when they post content on the internet that could identify them or the practice, they should do so in a manner consistent with their contract of employment. Staff should be made aware if their out-of-work activity causes potential embarrassment, or detrimentally affects the practice’s reputation, you may take disciplinary action and the employee may be dismissed.
Well-defined internet, email and social media policies covering use both inside and outside of the workplace, whether on an employer’s equipment, are key. Such policies should outline what disciplinary action may be taken.
It is important the policy establishes a fair and proportionate process for monitoring online activity and that staff are aware of this. Once established, you must ensure the policy is clearly followed and enforced.
It should be made available to all staff and appropriate disciplinary action, in accordance with the policy, should be taken in the event of its breach.
Lastly, your policies must be made known and readily available to all staff; the staff handbook is the ideal place to refer to them.
- Jon Smart is head of care at Freeths LLP.