Social media-savvy employers – navigating risks in the workplace

Published on: 21 Mar 2023

Image: © REDPIXEL / Adobe StockSocial media can be a powerful tool for many businesses. However, its use by employees creates a real risk for employers – particularly in terms of productivity, confidentiality and the potential for reputational damage.

Employers need to carefully consider what expectations they have around employee social media use and how they communicate them to employees.

Risks that arise

It is easy to see that employees can be distracted by social media while at work – especially by their own accounts – with the follow-on detrimental impact on productivity.

While employees may connect with co-workers in the online world to enhance relationships, Mark Stevens – a senior associate at VWV LLP – said: “These online interactions can create the potential for inappropriate behaviour, and online bullying and harassment.

“Often, the forum that such activity takes place in is not accessible or monitored by the employer, making it difficult to police.”

Facebook and Twitter are two well-known platforms where users can express their personal views for others to see.

As Mr Stevens has witnessed first-hand, employees not only have the ability to post controversial comments and opinions – and often do so – such messages can very quickly spread.

He said: “Where inappropriate, controversial or offensive comments or viewpoints are shared, members of the public could very easily associate those comments or points of view with the company that employed that individual, thus damaging its reputation.”

Of course, many use social media platforms as a tool for marketing. However, the line between personal and professional accounts can become blurred.

Mr Stevens said: “Employers should ensure employees with responsibility for running a business social media account use it in a professional way, and not as though it is their own personal account.”

Tribunal cases brought

Mr Stevens noted that employees and social media don’t make for great bedfellows in tribunals, pointing to a few cases – the first being Whitham versus Club 24 Limited (trading as Ventura) in 2010.

He said: “In this case, an employee made derogatory comments about her workplace on Facebook. Among other things, she said: ‘I think I work in a nursery and I do not mean working with plants’. The employer dismissed the employee, but an employment tribunal went on to find that this dismissal was unfair and the comments made by the claimant on social media were ‘relatively minor’.”

Mr Stevens comments that it was felt by the tribunal nothing suggested the employer had suffered any actual embarrassment or that its relationship with clients had been harmed as a result.

But that outcome is not always true and to prove the point, he cites the 2015 case of [the] British Waterways Board versus Smith.

Here, Mr Smith was employed by the British Waterways Board (BWB) as a manual worker for eight years.

Stevens said: “[Mr Smith] worked on a rota where he was on standby for one week in every five. BWB prohibited employees drinking alcohol when they were on standby. It also had a social media policy that prohibited ‘any action on the internet that might embarrass or discredit BWB’.”

It appears that during a disciplinary investigation into Smith's conduct, Facebook comments were identified that were either derogatory about BWB, supervisors and colleagues, or suggested he had been drinking on days when on standby.

Mr Stevens added: “Mr Smith accepted he made the comments, but said they were just ‘banter’ and he had not in fact been drinking. He also contended that his Facebook account had been hacked and changed from private to public.”

However, it was determined that Mr Smith’s actions were a clear breach of BWB’s policies and he was summarily dismissed for gross misconduct. The employment appeal tribunal held that a dismissal for derogatory comments about an employer on Facebook was fair.

A third case – Gibbins versus [the] British Council in 2017 – drives the point home.

In this case, Ms Gibbins – a senior employee of the British Council at the time – posted an offensive comment on a public Facebook post about Prince George.

Mr Stevens said: “The employee believed the comment could only be seen by her 150 Facebook friends. However, it was leaked to the media and brought the employer’s reputation into question. The employee was dismissed based on a ‘reckless lack of judgement, inexcusable in someone in a senior position’.”

He added: “The employment tribunal concluded in this case the employee had been fairly dismissed on the grounds that the British Council held a genuine belief the employee was guilty of misconduct in respect to her remarks and it was those remarks that caused negative publicity.”

Importance of a social media policy

It is clear to Mr Stevens that these cases illustrate the importance of a good social media policy. He said: “Employers should have an enforceable social media policy in place to minimise the potential risks that come as a result of using social media in and out of the workplace.”

He adds that the policy should set boundaries, and define acceptable and unacceptable use and behaviour, as this will prevent any ambiguity around social media use among employees.

Mr Stevens often advises employers writing a policy to detail how employees should portray themselves online; what social media accounts are deemed acceptable – especially in the workplace; whether personal social media accounts can be used during working hours; the difference in using company social media accounts and personal social media accounts; and guidance on how employees’ activity on personal social media accounts can be linked back and associated with the company.

The policy should also highlight expectations when sharing company information online and the extent to which this is prohibited. It should also make mention of the disciplinary measures that could be taken if policies are breached, which could include dismissal on the grounds of gross misconduct, particularly if the conduct damages the employer’s reputation.

Stevens said: “[It is vital] the policy makes clear it applies not only to use of social media sites using the employer’s equipment, but equally to social media sites used or accessed outside of work, or using the employee’s own equipment.”

He also says the policy should make it clear accounts set to “private” should still adhere to the requirements of the policy. It is likely employers will have other policies that may have a bearing on a social media policy. As a result, Mr Stevens advises these other policies – for example, disciplinary and grievance; bullying and harassment; and data protection – are “all updated in line with any social media policy that is written”.

Beyond policies, the desire exists for employers to not want employees accessing social media accounts – at all – in the workplace. Where this is the case, Mr Stevens recommends employers apply technical measures to block access to these sites from company devices and its network. He said: “While this may protect the employer’s network from viruses and hacking, firms should be aware an employee can still access social media while in the workplace by just using their own devices.”

Only going so far

Finally, the training for HR teams and managers is an important part of ensuring compliance with policies.

Mr Stevens said: “Employers must be careful about monitoring employees in the workplace; this should not go further than necessary, and employers should avoid implementing restrictions that are intrusive or unreasonable – it is a balancing act that employers must carefully undertake.”

He added: “Human rights legislation provides individuals with the right to respect for private and family life, and correspondence, and this could be contravened by monitoring.”

Also, employees could argue scrutinising their social monitoring postings could be discriminatory. Proportionality and consistent treatment of employees is, therefore, important.

Summary

Social media is a part of society, regardless of whether we like it. Employers have no choice but to live with it, and this means applying thought as to how it is to be managed within the workplace.