Getting to grips with Social Media

It has become almost impossible to look at a newspaper without gaining some sense of the impact of social media on everyday life in the UK.

A juror has been jailed for contempt of court after contacting a defendant on Facebook.

A premiership footballer has been exposed on Twitter.

Social media presents ever increasing challenges for employers as they seek to adapt to their policies and practices to the digital world.

Exposure of social media use has raised important questions about the boundaries of the employment relationship. Where does an employee’s obligation to his employer end and his private life begin?

This distinction is often a difficult one to draw in practice, particularly as employees work increasingly flexible hours and they spend less time in a formal working environment where standards of conduct are more readily applicable. Also as younger generations have grown up with a different set of digital etiquette which are now beginning to enter the workplace.

The distinction, however, remains vital in answering the question of whether employees’ conduct, particularly where it occurs outside the work place, is something about which an employer can legitimately be concerned.

A blanket ban on the use of social media in the work place is one potential response to the challenges. However, in many cases it is not practical or realistic and is rarely a complete answer.

Disciplinary issues can arise in relation to comments made outside working hours if those comments are damaging to the employer’s business or cause offence to other employees.

There are relatively few cases on the topic and, until further guidance is available, employers should adopt a clear social media policy and treat social media – related misconduct in a similar way to other examples of misconduct occurring within (or outside) the work place.

Some of the key issues employers may face include:

1. Employees acting inappropriately in their private life
The starting point is employers are not obliged to disregard conduct simply because it occurs outside the workplace. Obvious examples would be inappropriate comments made on LinkedIn or Facebook.

2. Criticising the employer
Of course employees often complain to friends and family about their employer. The problem created by social media networks is the increased likelihood of such comments becoming public. There have been numerous press stories of employees who have been disciplined and dismissed for making such negative comments. However, employers should not automatically assume that an online comment would necessarily merit dismissal or even disciplinary action.

3. Bullying and harassment
In June 2011, the BBC reported the case of a police officer who was dismissed for, amongst other things, posting deeply offensive comments about other employees on his Facebook account. Such conduct may breach an employer’s policy on workplace bullying and, if so, should be treated in the same way as if it had occurred in the workplace. Bear in mind that there are circumstances in which an employer may bear liability for the conduct.

4. Employee claims ignorance
There may be evidential issues for an employer who wishes to discipline their employee who appears to have acted inappropriately online. There may be difficulty proving that online conduct is responsibility of the employee in question.

5. Consistency
You must make sure that you treat employees fairly and consistently. Care needs to be taken where an employee raises examples of other employees doing similar actions of equal gravity. Again this can prove difficult.

6. Human rights
This is often thrown in by ‘barrack room lawyers’ in many situations and there is a right to privacy under Article 8 of the European convention on human rights. There may also be reference to Article 10, freedom of expression. One interesting question as regards to social media is whether or not it is actually private. Most recent cases have said that comments made on Facebook were in the public domain, and therefore, did not raise issues of employees’ privacy rights. Each case should be looked at on its merits.

Employment law against social media is still developing and is likely to continue to develop over a considerable period of time. As with many aspects of employment, the best starting point for an employer is to have clear policy setting out reasonable principles of what it expects its staff should and should not do. As with any other potential disciplinary matter, proper investigation and a consistent and fair approach will be crucial.

If you feel you may need advice Oglethorpe, Sturton & Gillibrand can advise you on the latest law in this field. Call David Park on 01524 846846 for further information.