This article was first featured in HRBullets 19 January, 2015

The use of social media at work is common and is often encouraged within many organisations. Your employees’ use of social media can however seriously damage your business. A click of an employee’s mouse could result in your company facing claims for potential breaches of customer confidentiality or damage to its reputation. Cyber bullying claims from individual employees against the company are also becoming more common.

Not only do you have to face these risks, you also have to manage the potential for reduced productivity caused by employees’ wasting working time using social networking sites for their personal use. Here are 10 ‘top tips’ to help you protect your business against the risks of increased use of social networking.

Communicate the new risks

  • Make it clear to all staff that their use of e-mail and social media inside and outside work, whether or not they use your equipment, is not necessarily private and has the potential to damage the company’s business reputation in the eyes of clients.
  • Make it clear that employees must not make discriminatory comments about colleagues or any third party in any public forum.

Update your disciplinary policy

  • Make sure your definition of gross misconduct includes making any social media communications (both inside and outside work) that could damage your business interests or reputation either directly or indirectly. Social media should not be used to defame or disparage you, your staff or any third party or to harass, bully or unlawfully discriminate against staff or third parties.
  • Make it clear to all employees the consequences of misuse of social media and that dismissal is a potential sanction. Examples of misuse include posting confidential information about pricing or customers on a network site where their action will clearly have a damaging effect for the business or general posts that customers could find offensive.
  • Don’t dismiss automatically. Do check the disciplinary policy before you decide to dismiss an employee because of their use of social media. Ensure that dismissal is proportionate when compared to your social media policy.
  • In Game Retail v Laws the EAT held that a dismissal for offensive, non-work related ‘tweets’ is potentially fair but declined to give any general guidance for employers about what circumstances justify dismissal. Each case is ’fact-sensitive’ and any dismissal needs to fall within the usual ‘range of reasonable responses’ test. The indication from the EAT was that Twitter has a more public nature than Facebook. Therefore, dismissals relating to offensive tweets, even though the tweets were non-work related and posted from a personal twitter account, are potentially easier for employers to defend than dismissals arising from the posting of offensive comments on Facebook.
  • Any dismissal needs to be consistent with the sanction applied in other cases. Consistency in disciplinary decision making will help you defend any claims of unfair dismissal.
  • To help maintain standards, keep communicating your aims and values to employees internally to emphasise the benchmark for employee behaviour.

Protect against new risks by updating your use of internet and e-mail policy

  • Give clear guidelines to employees as to what you consider acceptable conduct when they use social media. Make it clear that this applies to postings made in non-work and work time and from the employee’s private account if the employee has not restricted his or her settings to private.
  • Be clear on postings relating to the business (in particular on Twitter, Facebook, Instagram, etc.) and contact via social networking with business contacts (for example, using LinkedIn).
  • Require employees to insert a disclaimer into any blog (weblog) stating that ‘any views contained in the blog are those of the employee are not representative of the employer’s views’.
  • Tell employees how you will monitor internet usage.
  • Require employees who see social media content that disparages or reflects poorly on their employer to contact their manager.

Explicitly cover out-of-office behaviour in your internal policies and link the policies to protect against new risks

  • Give examples in your policies of unacceptable behaviour by employees outside of the office and office hours, for example, where their comment impacts or could impact on the company’s reputation or where they misuse other employees’ personal data.
  • Make clear that breaches of other company policies amount to a breach of the disciplinary policy where this is appropriate.

Take a stance on the extent to which you want to encourage social networking at work

  • Decide as a company and make clear whether you will allow employees access to social networking websites from your computers at any time or whether you will add websites of this type to the company’s list of restricted websites.
  • Consider whether you also want to prohibit employees from publishing any content on the internet during work hours or using company systems.
  • High-value, time-critical, company information may justify a ban. However, younger applicants to the company (Gen Y employees or Millennials) will increasingly be attracted by a business which exploits the commercial benefits of social media.

Keep evidence of any damage to reputation from employees’ use of social media

  • Support any decisions you take to discipline an employee.
  • The evidence should be more than just distaste or disapproval for what has been said – a customer or client complaint is good evidence.

Use tailored internal training to make company expectations clear to all employees

  • Training can/must reinforce your updated policies.
  • Make it clear to employees that on-line behaviour, in and outside the workplace, if the employee has not restricted his or her settings to private, should conform to the appropriate standards.

Review your standard employment contracts to check the level of confidentiality protection they provide

  • Check that your contracts of employment contain effective confidentiality provisions and that it is clear to an employee the types of information that are regarded by you as confidential and must not to be disclosed to the public.
  • The ability for employers to require employees to return client contact information listed by them on LinkedIn on the termination of their contracts is a pressing issue. Consider updating your social media policy to require employees, on the termination of their employment, to delete all contacts added to LinkedIn during the course of employment and to pass these details to you. You can take this protection further by specifying that the contacts should not be added again for a period that mirrors the restrictive covenants. To ensure that this wording is enforceable it should be a contractual requirement and a clear term of employment. It should also be clear that employees have a clear duty to promote the employer’s business on LinkedIn.
  • Although this approach to the use of LinkedIn accounts is untested it is consistent with the High Court decision in Whitmar Publications v Gamage where an employer was allowed to exert control over an employee’s LinkedIn account after termination to protect its business. This is despite the fact that LinkedIn terms state that ownership of a LinkedIn account is personal to the account holder.
  • There are still many unanswered questions posed by employees’ use of LinkedIn. The position is unclear when an employee uses a personal LinkedIn account for business and personal use or where an employee turns up at a new job with an established account. For the new employer to exert control over the employee’s use of LinkedIn, it must establish that the account is operated for the benefit of the new employer.
  • Remind employees that compliance with policy rules is a contractual obligation and that breach of the disciplinary or internet/e-mail/social media policy is a disciplinary offence.

Restrict access to confidential information on a need-to-know basis

  • Best practice is to limit confidential company information to those employees who need it – this should limit the extent of any problem.

Decide to what extent you want to use social media to gather information for recruitment decisions

  • More frequently, HR professionals are using platforms such as Facebook to gather information about potential candidates. You should therefore consider for what purpose, if any, your managers should use social networking for recruitment purposes and at what stage in the process.
  • Give clear guidance to recruitment managers – so that they know what information they are permitted to look at and take into account.

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