The Double - Edged Sword of Social Media

There is no denying that the increased use of social media in the workplace has significantly bridged the gap between businesses and their audience. Online platforms such as LinkedIn, Facebook and Twitter now allow organisations and their employees to engage with a wider demographic, and this optimises professional networking and brand awareness. Provided that your organisation boasts a positive corporate culture, social media may prove to be a powerful tool to tell a story about how wonderful your company is.

However, there are pitfalls to affording employees unrestricted social media access. We take a look at what the law says about social media usage, cases where employers have gone too far in terms of reprimanding staff for what they posted on social media, and what employers should do to minimise the risk of inappropriate online activity.

The risks of uninhibited social media usage in the workplace

When employers neglect to implement a social media policy, the consequences can be disastrous in a number of respects. Below we list the top 3 risks:

1. Damaging company reputation by alienating customers: One of the predominant features about social media is that it gives employees a voice and that voice echoes throughout a wide online following. For this reason, it is crucial the employees are made aware of how what they say reflects on the company they represent, and as such they should do their best to uphold the values of the organisation.

All too often employees will thoughtlessly post something which ultimately makes their organisation look bad, such as the 13 Virgin Cabin Crew who were sacked following a Facebook discussion where they referred to their customers as ‘chavs’.

2. Security breaches: According to the 2015 Information Security Breaches Survey, 13 percent of large organisations had a security or data breach relating to social networks in 2015. If you give employees too much leeway in terms of online activity, without educating them on the potential risks to your organisation’s security, they may unwittingly open up channels whereby cyber criminals deviously use social engineering tactics – such as phishing, baiting and pretexting to exploit a person’s trust and good nature to gain access to the inner workings of an organisation.

3. Legal consequences and claims: We’ve all had it drilled into our minds that employees who misuse social media in the workplace run the risk of being reprimanded or even dismissed. The media often sensationalises tales of how various employees were dismissed following inappropriate social media activity that poorly represented the brand they were employed by. However, what many people tend to overlook is how employers can also be held liable for acting too quickly against online activity that they deem inappropriate.

“To minimise the risk of inappropriate social media activity, employers should have a well drafted social media policy or, at least, appropriate clauses about usage in contracts of employment. Policies should make clear what would constitute unacceptable usage,” advises Jennifer Smith, Award-winning Employment Solicitor and JMW Solicitors LLP.

What the law says about social media usage

“Social media has become phenomenally popular. It is reshaping industries and lives. It also raises new legal issues. Some activities become actionable when conducted via social media; some assets that have been historically protected cease to be when created via social media,” cautions Richard Cumbley, Partner at TMT Practice.

History has made it evident that social media has impacted both employers and employees, particularly when an employee’s actions on social media transcend the virtual world and become real workplace issues. Here are some examples of how employment laws should shape your social media usage policy:

1. Discrimination laws: It is illegal to discriminate against individuals with protected characteristics, such as race, gender and disability, under the Equality Act 2010. Publishing discriminatory content such as jokes against minority groups, or worse yet, bad-mouthing colleagues or customers, could result in discrimination claims against not only the employee responsible for publishing the offensive content, but also the organisation that they represent. This in turn may drive employers to take further action.

2. Libel and defamation: A negative tweet or Facebook post about someone could potentially be libellous in England and Wales if it damages someone's reputation, and exposes them to hatred, ridicule or contempt. As a civil offence, you could end up paying for the damage caused.

These rules also apply to a retweet - which is when you share or forward someone else's message on Twitter. You may not have made the original allegation, but retweeting it could be seen as an endorsement. You could be accused of making a defamatory statement, and you could be sued.

You can also be sued even if you do not name a person in a defamatory statement. Basically, if the person you are talking about can be identified from what you have said, then you can be sued.

When employers are too strict with social media

When thinking of those on the receiving end of consequences derived from inappropriate social media usage in the workplace, one often thinks of the employees. However, employers might be surprised to discover that they too, if too hasty to reprimand and even dismiss who they perceive to be an offending employee, may also be held liable.

“Employers need to manage their employees fairly and consistently. This applies to how they respond to their employees’ usage of social media as much as to any other area,” advises Jennifer.

“There is an implied term of trust and confidence in every employment contract and breach of it may amount to a repudiatory breach, enabling the employee to claim constructive dismissal,” she cautions.

An example of this is the case of Mrs. Whitham, who was unfairly dismissed following a Facebook comment she made about her employer which read: ‘I think I work in a Nursery, and I do not mean working with plants.’ Following disciplinary proceedings brought against her, Mrs Witham, who had up until that point exhibited an exemplary employment record, was dismissed for misconduct. However, the Employment Tribunal ruled that she had been unfairly dismissed as the sanction of dismissal for a relatively mild comment on Facebook fell outside the band of reasonable responses.

The tribunal noted that the comments on Facebook did not specifically refer to a client and nor was there any evidence of any actual or likely harm to the relationship.

“In the case of Stephens v Halfords Retail,” says Jennifer, “the employee had posted unfavorable comments on Facebook regarding the company’s restructuring plans. However, he did show contrition when he realised that he had breached the company social media policy, removed the comments straightaway and promised not to repeat his actions. He was dismissed but won his claim for unfair dismissal. “

“This is a stark reminder for employers not to simply rely on a social media policy and critically, to carry out a thorough investigation,” Jennifer observes. “In the area of social media use and abuse, there is plenty of scope for controversy. Blind reliance by an employer on a social media policy will not be enough - the employer will need to act reasonably in applying the policy,” she advises.

Social media policies and training

Whilst it is beneficial and even advisable to permit your employees to access social media, this highly interactive tool can be a double edged sword. Just like how it’s so simple to spread good news, it can be just as easy to carelessly publish a rant on social media that reflects badly on your organisation.

“How can an employer mitigate, if not remove, all the risks? Through education,” says Jennifer. “Employees should be made aware of both the potential for social media and its risks. If employees will be using social media on behalf of their employer’s business they need to be told what is and is not acceptable usage.” For this reason, it is crucial that employers have a good social media policy that includes the following key areas of focus:

  1. When posting on behalf of the organisation, add value: When employees publish work-related social media content, they should provide useful information or insight that is relevant to the business. Employees should be prohibited from sharing confidential and proprietary information online.
  2. Take ownership and be responsible for content: Employees should know to exercise good judgment and be prepared to deal with any consequences that result from inappropriate actions or statements online.
  3. Be authentic: Users of social media should clearly identify themselves by name, and when relevant, position and company.
  4. Be cautious and safe: Train your staff to avoid cyber criminal tactics that could result in a hazardous security breach.
  5. Keep your audience in mind: Before publishing any content, employees should ensure they are not alienating readers that may be current clients, potential clients, or past/current/future employees.
  6. Keep it productive: Social media efforts can only be successful if employees find a proper balance between social media and other work.

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About our contributors

Jennifer Smith

Jennifer Smith is an Award-winning Employment Solicitor at JMW Solicitors LLP. She has a broad range of employment law experience, spanning both contentious and non contentious  employment work. In addition to tribunal work, she also reviews and drafts contracts of employment, policies, consultancy agreements and compromise agreements. Advising companies how to protect their interests through effective use of covenants.

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