Social media has proven business benefits but what can be the legal ramifications be when it goes wrong?
Social media is evolving at a rapid rate. There seems to be a new platform popping up almost on a daily basis. As an employer it can also be hard to monitor your business’ presence online as well as who is responsible within your company for keeping the various channels updated. This is where some companies can come unstuck.
With over 50% of the world’s population aged under 30 years old and with more than 50% of the world’s ecommerce done online, social media seems like it is here to stay. And it’s not just for the younger generations. Grandparents are the fastest growing demographic on Twitter. (Socialnomics 2016)
Social media can be a factor right from the moment you recruit for a new member of your team. Many companies now do background checks on social media channels to look into an applicant’s background. But what constitutes a reasonable investigation into someone’s background before you cross a legal line?
During the recruitment process you are as an employer allowed to check applicants’ social media profiles so long as they have not been locked as private by the applicant. There are many data protection implications regarding this which the Information Commissioner has issued a Code of Practice on Employment Practices.
If you are going to undertake checks you should inform and seek the candidate’s consent and do so as late in the process as possible i.e. before offer stage but after interview stage. If you find something that you’d like to question the applicant on then give them the opportunity to comment on your findings. Equally ensure your checks are proportionate to the role you’re recruiting for. For example if you are recruiting someone for a role working with children then your checks may be more stringent than those for an administrative role in an office.
But what happens if someone within your organisation is using social media excessively or has used it inappropriately?
You should have a policy in place which outlines clearly your expectations of social media use. You are able to monitor employees’ usage, however, it must be clearly written in your policy what usage you will monitor and where it will be monitored for example just in the work place or at home too. If this is not present within your policy then you could be in breach of the Human Rights Act against employees’ privacy.
On the other end of the spectrum what happens when an employee comments, ‘likes’, ‘shares’ or tweets something about your business or other employees? There have been a few instances of cases where disgruntled employees have posted various comments on platforms such as Facebook complaining about their manager or work. Depending on their role and what has been said, for example whether it has damaged the reputation of the business or not, could amount to an unfair dismissal claim against your business if you were to unlawfully dismiss an employee. Where your brand has been discredited or brought into disrepute, then a fair dismissal is likely to be the right decision, but legal advice should be sought.
Twitter is considered more of a public forum where tweets can be seen by anybody. Unlike Facebook, where accounts can be locked and made private, tweets can be more publicly damning. Again, your social media policy should outline what is appropriate and inappropriate use of personal social media accounts, so that employees are aware of what is expected of them.
What is also useful to remember is that your own company can be liable for any legal proceedings whereby an employee have made comments about another business or person using your corporate account. An example of this is when a younger employee working at a legal firm in Yorkshire tweeted from the company twitter account, ‘‘Been injured in a roller coaster crash?! We’re experts in Personal Injury!! #Smiler #AltonTowers.” Although this claim did not go to court, the legal firm suffered considerable damage to their brand and could have been liable.
One case which did go to court was that between of Otomewo v Carphone Warehouse Ltd. Two members of staff posted a status update on the claimant’s facebook page, without his permission or knowledge. The status update read: “finally came out of the closet. I am gay and proud.” As it took place in the course of employment and the employees’ actions took place during working hours and was between staff members and the line manager, the employer was found vicariously liable for the conduct which amounted to harassment on the grounds of sexual orientation.
So here are a few pointers to ensure you stay on the right side of the law when it comes to social media and your employees:
- Put a clear social media policy in place which outlines expectations and what is and isn’t acceptable both during working hours and outside of work. Make sure to discuss this with employees so that they understand expectations.
- If you are going to monitor your employees use of social media then explicitly state this in your policy as you do not want to breach their human rights.
- Monitor who has access to corporate social media accounts and monitor activity online to ensure it is in line with brand guidelines. Do not assume that the youngest member of the team is the best person to update these channels as although they may be au fait with social media they may not understand your business or the message and tone of what you want your customers to hear and see. Equally if lots of your employees are permitted to tweet on your behalf from the company or from their personal accounts, you should outline what employees are permitted to post, blog or tweet.
- Ensure that the person/people in control of your social media have received training on your various social media channels and give examples where things have gone wrong.
This is still a fairly grey area and there have not been many examples to come out of employment tribunals or the High Court with a definitive message of what is and isn’t correct behaviour. As companies increase their reliance on social media we expect to see many more examples of what is and isn’t accepted emerge. Until then, companies are urged to put in place policies which outline to the employee clearly what they can and can’t be held responsible for as a result of their actions on social media.
If you’d like some assistance or advice on drafting and/or communicating your policies to employees then please get in touch and we’ll be happy to help. Please contact us on firstname.lastname@example.org or call us on 0207 977 9200.