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Navigating social media risks in the workplace

Social media is here to stay - and employers need to consider how it is used in the workplace

With social media now part of life, whether we like it or not, employers need to give careful consideration to how it is managed in the workplace, says Adam Bernstein

Social media can be a powerful tool for 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.

Reputational risk

It’s 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, as Mark Stevens, a senior associate at VWV LLP, notes, this can unfortunately “create the potential for inappropriate behaviour and online bullying and harassment”.

As Stevens has witnessed first-hand, employees not only have the ability to post controversial comments and opinions, such messages can quickly spread. He says: “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, but the line between personal and professional accounts can become blurred. This is why Stevens advises employers to “ensure that 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

Notably, social media cases have fallen considerably over the last five years, which may be testimony to the measures employers are putting in place to guard against misuse. However, the cases that have come before the tribunals have resulted in conflicting decisions, reflecting how fact-specific these cases are.

Stevens summarises: “Case law has shown that dismissals in situations where the reputational damage is minimal to non-existent are invariably unfair. However, more damaging allegations can see a dismissal found to be fair. In one case, a dismissal was found to be fair even though the post stayed online for seven months without reputational harm.”

The importance of a social media policy

It’s clear to Stevens that these cases illustrate the importance of a good social media policy. In his view, employers should have “an enforceable social media policy in place in order 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 ambiguity around social media use among employees.

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, and make mention of the disciplinary measures that could be taken if policies are breached. This could include dismissal on the grounds of gross misconduct, particularly if the breach damages the employer’s reputation.

It’s also vital, in Stevens’ eyes, that the policy “makes clear that 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”.

The policy should make it clear that accounts set to ‘private’ should still adhere to the requirements of the policy. Employers may have other policies that have a bearing on social media. Stevens advises that these are updated in line with any social media policy. Should an employer not want employees to access social media in the workplace at all, he recommends applying technical measures to block access from company devices and its network.

Only going so far

Finally, training for HR teams and managers is an important part of ensuring compliance with policies. “Employers,” says Stevens, “must be careful about monitoring employees in the workplace; this should not go further than necessary, and employers should avoid implementing restrictions which are intrusive or unreasonable. It is a balancing act that employers must carefully undertake.

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

Moreover, employees could argue that scrutinising their social media posts could be discriminatory. Proportionality and consistent treatment of employees is therefore important.

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