Social Media and the Workplace

Angela Schettino writes:

Facebook, twitter and you-tube are all the ‘in’ trends with today’s employees’. This week’s HR e-mail covers social media within the workplace, outlining the issues surrounding this topic and highlights some interesting case law.

Social Media

In April this year, the UK's first youth police and crime commissioner, Paris Brown, resigned from her post following criticism of messages she posted on Twitter. The news story reminded us that employees and employers alike are still falling foul of Social Networking.

Here we look at the Social Media story so far and how case law is now guiding us on the topic.

The highly publicised mistakes of Miss Brown highlight the apparent ignorance of many employees that their postings are so lasting and visible.

Apparently oblivious at the time, Miss Brown commented:

"I accept that I have made comments on social networking sites which have offended many people and I am really, truly sorry for any offence that has been caused. I strongly reiterate that I'm not a racist and I'm not homophobic. I have fallen into the trap of behaving with bravado on social networking sites. I hope that this stands as a learning experience for many other young people.”

Bravado on Social Networking

We have all seen this by now. In an age when many people seem to have latched on to ‘real time’ communication of events, Social Networking such sites as Facebook, Twitter and Myspace seem to have introduced a level of bravado and foolishness in human expression that could only be possible given the opportunity to ‘Share’ before you have had time to process your own thoughts properly (and perhaps amend them.)

Entering your thoughts online can be likened to performing on stage in a darkened theatre... You don’t know how many people were watching until the lights go up. The implications can be devastating, not least for employers. Cases so far have touched on issues of defamation, discrimination, harassment, misconduct and breach of basic human rights.

The Story so Far...

In the past few years we have been watching for case law as it has emerged on the topic. It’s tricky. Managing Social Media use in the workplace is a bit like handling one of those slippery snake toys that you probably had as a kid. You need to get a firm grip of the thing otherwise you will find it will slip easily out of your hands. We will highlight how employers can get a firmer grip, but first list some prominent Case Law as it has developed;

A. Gill v SAS Ground Services UK Limited ET/2705021/09

This case established that employers can use entries on websites such as Facebook and YouTube as evidence in disciplinary proceedings.

B. Whitham v Club 24 Ltd t/a Ventura ET/1810462/10

Whilst an increasing number of tribunal cases involve employees making work-related comments on Facebook, this case shows that derogatory comments will by no means always justify dismissal.

C. Crisp v Apple Retail (UK) Ltd ET/1500258/11

In this case, Apple, used its policies and procedures to fairly dismiss an employee who had made several Facebook posts that it considered could damage its reputation. Their policies were robust and the potential damage was clear.

D. Teggart v TeleTech UK Ltd NIIT/704/11

A Northern Ireland industrial tribunal provided a useful example for employers of circumstances in which it can be fair to dismiss an employee for offensive comments made about a work colleague on Facebook in this TeleTech case. The call centre employee had made offensive comments about a colleague.

E. Trasler v B&Q Ltd ET/1200504/2012

The employment tribunal held in this recent case that the claimant was unfairly dismissed for comments on Facebook about his workplace, although his compensation was reduced by 50% due to his actions. The case further outlines the burden placed on the employer to be able to justify a dismissal by demonstrating the impact of the comments made and the measures they have taken to communicate and train employees about Social Media use.

ACAS Guidance

In order to help employers ‘get a firm grip’ on this, some very sound advice was provided by ACAS in 2012 following the results of a research paper they commissioned by the Institute of Employment Studies.
http://www.acas.org.uk/media/pdf/f/q/1111_Workplaces_and_Social_Networking-accessible-version-Apr-2012.pdf

The report looked at key issues such as;

• Recruitment with reference to social media
• Social media and employment law - Legal issues / Ethical issues
• Formulating a policy
• Employer access to information about an employee’s private life;
  • Blurring of work and private life
  • Relationships at work
  • The business benefits of social networking sites
• Cyber-bullying

The report concluded that as a very minimum employers should:

• Draw up a policy on social networking.
• Treat 'electronic behaviour' in the same way you would treat 'non-electronic behaviour'.
• React reasonably to issues around social networking by asking 'what is the likely impact on the organisation?'

In effect, the report advises employers to take a "common sense stance" to regulating behaviour and to draw on "norms that might apply in non-virtual settings".

Social Media Policies - Acceptable use of social networking

In addition it is not necessary to draw up policies from scratch; it is likely that internet usage or ICT policies are already in existence. Social Media can easily be a new addition to these. It is important however to draw a clear distinction between business and private use of social media. If private use is allowed during working hours, the policy should draw clear guidelines on what will not be acceptable use and where authorisation should be sought before posting comments which may be linked directly or indirectly to the organisation.

What should it cover?

ACAS outline the following;

1. Network security: to avoid viruses, most organisations will have controls on the downloading of software. Technical security features, such as firewalls, will usually be managed by the IT department.

2. Acceptable behaviour and use for:

- Internet and emails: what limits are there on personal use of internet and email?
- Smart phones: employers need to update their policies to cover new and evolving ways for accessing social networking tools and to reflect changing employee behaviour and attitudes.
- Social network sites: remind employees of privacy settings. Research has shown that the majority of employees would change what they have written on their social networking sites if they thought their employer could read them. Also cross reference to your bullying and harassment policy.
- Blogging and tweeting: if an employee is representing the company, set appropriate rules for what information they may disclose, the range of opinions they may express and reference relevant legislation on copyright and public interest disclosure.

3.Data protection and monitoring: Have you considered alternatives to monitoring and can you justify its use in terms of the negative impact it will have on your business? Make sure you consult thoroughly with your employees and their representatives.

4.Business objectives: As well as setting clear rules on behaviour, many employers are integrating the use of social media tools into their business strategy. Social networking can be used internally to promote levels of employee engagement and externally to help promote the organisational brand and reputation.

5.Disciplinary and Bullying procedures: Try and apply the same standards in virtual and non-virtual settings. To help you respond reasonably, consider the nature of the comments made and their likely impact on the organisation and colleagues. Provide examples of what might be classed as 'defamation' and the sanctions you will impose. Also, be clear about confidentiality and what constitutes intellectual property.

Further Steps

• Communication and training

Case Law suggests that Tribunals will take into account whether or not a policy has been communicated on Social Media usage and whether training has been provided. By taking these steps you will significantly lower the potential for inappropriate usage and will have done everything in your power as an employer to educate employees on the matter. Technology and Case Law is evolving quickly, so be aware of updates and review policies regularly.

• Employee induction

The induction process is a good way to set clear boundaries about the use of the internet. Each employer will have its own level of acceptable standards and it is better to be clear on these from the outset. A report published in 2010 by My Job Group found that 55% of employees questioned admitted to accessing social networking sites at work.