Last week Tabitha Juster wrote about navigating tricky recruitment issues, and reported on a recent story in which a job applicant took to Twitter to berate the “brutal” interview process, which she described as “like being sat in a room [with an] abusive ex”. The Twitter storm that ensued left the company facing a PR nightmare, which still ranks highly in google searches for the company’s name.
This got me thinking about the potential perils facing employers in a highly digitalised world, where the vast majority of their employees will be on social media of some sort (indeed, many of them won’t remember a time when you couldn’t communicate your every thought to the world wide web). There is no denying the marketing and communications potential of the internet, and many employees are actively encouraged to use social media as part of work. However, we have all heard the stories of where it has gone wrong – the employee who forwards a highly embarrassing email meant for colleagues to a client by mistake, the disgruntled employee who has taken to social media to rant about their employer, or the employee who has posted offensive or controversial comments online. The risk to an organisation’s reputation and business in these sort of scenarios is obvious (and often splashed across to the internet).
So, what can employers do to try to reduce some of the risks associated with employees and social media? Here are my top tips:
1. Develop a social media policy to encourage appropriate use of social media and keep it under review (the digital world moves fast and to be effective your policy should move with it). Use the policy to:
- prohibit employees from using social media in ways which could damage your organisation's reputation;
- remind employees that their social media activity is not necessarily private, and that online conduct can amount to misconduct (and potentially gross misconduct); and
- help employees to protect themselves and understand the potential risks.
2. Train your staff on your expectations of them and the appropriate use of social media, as well as the potential consequences of getting it wrong. Let's face it — if social media issues are important enough for you to dismiss an employee because of their actions online, they're probably important enough for you to devote some time and effort communicating your expectations. Monitor and enforce compliance.
3. Make it clear that employees should not use social media to disclose or misuse confidential or proprietary information, making sure your employees understand what you consider to be confidential or proprietary. Review employment contracts to ensure that termination and post-termination restrictions are relevant and up to date. Also consider contractual provisions that require employees to facilitate employer access after termination (i.e. disclosure of usernames and passwords).
4. Remember that attitudes to social media, and technology in general, can vary enormously. Any approach to social media in the workplace has to be relevant to both those who have very little knowledge about it and those who can’t remember life without it. Ideally develop policies with input from employees.
5. Make it clear that you will not permit employees to use social media to bully or harass colleagues. Ensure this is reflected in all relevant policies.
6. Impose clear express duties on employees who use social media for business purposes to promote your organisation's interests. Consider whether you want employees to state in social media posts that any views are their own and not necessarily reflect those of your organisation.
7. Before taking any action against an employee for social media misdemeanours, think carefully about why you are doing so and the potential damage (if any) the employee's actions have had on the organisation. It appears from the case law that dismissing employees for "bringing an organisation into disrepute" seems to be a particular favourite for employers. In such circumstances, a tribunal will want evidence that the employer has assessed the level of risk and that the employee has or could have brought the employer into disrepute.
8. Impose unnecessary or impractical restrictions on employee use of social media. Disproportionate restrictions can undermine compliance and sour employee relations, without achieving much for an employer.
9. Use social media to run background checks on applicants for employment and candidates for promotion without first considering the associated legal risks (see Tabitha’s recent blog for more detail on that).
10. Create a social media policy and then forget about it. It should be a living document that is not only enforced but constantly refreshed, renewed and made relevant for employees
If you require further information about anything covered in this briefing note, please contact Amy Wren, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, April 2019