Employers are increasingly facing challenges in respect to dealing with employee’s and social media such as Facebook, Twitter and YouTube: especially as more and more industries trial the implementation of social media into their marketing plans.
As a solicitor, only yesterday did I attend a course on how social media works, how it should be used and implemented into my marketing strategy. So no doubt given the financial climate, many of us will be using it as a more cost effective way to connect with likeminded people and professionals we would like to do business with (on a reciprocal basis if possible).
So what do employers have in place to ensure that social media can be used safely in their business? There has been some case law and ACAS guidance which helps and assist companies when dealing with disciplinary issues arising from what can only be termed as social media misconduct.
There are two kinds of usage of social media which are prawn to result in disciplinary action, this is:
1. Posting videos, comments, photo’s revealing some form of work related misbehaviour on a social media forum e.g. ringing in sick and them shortly posting ‘off to Alton Towers’.
2. Expressing views which employers do not wish to be connected with their organisation.
Helpfully ACAS produced guidance in January 2011, in their ‘Social Media in the workplace’ http://www.acas.org.uk/index.aspx?articleid=3375. The 2010 my Job Group Survey found that:
- Over half of employees said that had never criticised or talked negatively about their workplace.
- While a third said they had, 19% of this group complained about their boss or owner of the company, 13% had complained/criticised their peers and 12% had criticised their direct manager.
Some commentators have suggested that the way to avoid disciplinary situations is to ensure that employees have a forum where they can let off steam, perhaps this suggestion implemented correctly could be the answer.
Case study’s from the media:
There have been a couple of cases in the media (perhaps ironically) which have been related to disciplinary action having arisen as a consequence of some form of social media. There was the first case of Joe Gordon in 2005 (has social media really been around that long?) who was dismissed as a result of a personal blog which occasionally referenced his work at Waterstone's. These references included details of his shift pattern and it referred to his boss as “evil”. Perhaps, partly due to the media coverage his dismissal was overturned on appeal.
Catherine Sanderson was another one people may recall. She was from memory the lawyer working for a British firm in France, again in a non-work related blog she occasionally referred to her firm and as a consequence was dismissed. She took her employers to a tribunal in France and received an award for wrongful dismissal.
Here in the UK we have recently had sportsmen being disciplined, an example that springs to mind is former Liverpool footballer, Ryan Babel, who was fined by the English Football Association for casting aspersions of the integrity of the referee, Howard Webb, by posting doctored photographs of him in a Manchester United shirt on twitter.
There have also been cricketers and Rugby players who have been fined due to making inappropriate comments on a social media platform.
What should a business have in place?
It will not come as a surprise to any of you, but the most important things would be a social media policy which is well defined and reasonable. This will ensure both management and staff fully appreciate the implications of comments being made on a social media forum.
Employers should ensure that their social media misconduct is not dissimilar to offline conduct.
Ethical considerations:
When considering whether an employee should be disciplined for misconduct from social media which centres around harming the reputation of the company, managers/owners should always consider the scale of the harm i.e. how harmful is it if the comment is read by a relatively small group of people.
How should a company formulate a policy?
If possible (and smaller companies may find this difficult) engage employees in the process of formulating a policy. Ensure that the policy is not too wide (for example making any attempt to set out that employees are responsible for comments made by their friends would be seen as being too wide and potentially unenforceable).
The following should be covered in your social media policy:
1. Network Security.
2. Acceptable behaviour and use for:
- Internet and emails.
- Smart phones.
- Social network sites and
- Blogging and tweeting.
3. Data Protection and monitoring.
4. Business objectives and
5. Disciplinary process.
Is there anything else I should be aware of?
There has been a recent tendency for employers during the recruitment and/or disciplinary investigations to use evidence from the employees Facebook or Twitter account and this can cause all sorts of issues not least the Human Rights Act 1998 (which is very quickly brought into the equation).
If you are an employer, owner or manager you should ensure that you are familiar with the Regulations of Investigatory Powers Act 2000 as material monitored without consent could lead to a claim against you. However, monitoring is not unlawful in the following circumstances:
1. Where the employer reasonably believes he has consent from the employee and
2. Where the employer is monitoring to prevent a crime, protect their business or to comply with financial regulations.
I hope you have found the above information useful and please remember if you are in the process of drafting a social media policy or disciplining an employee for social media misconduct please contact me for case specific advice ideally before any action is taken on 0113 350 4030 or alternatively samira.ali@scesolicitors.co.uk.
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