Social Media - A Burden or a Benefit?

We have seen a marked increase in enquiries in relation to employers` concerns in relation to things said by employees both in and out of working time on social networking sites. 

Whilst the opinion of many employers is divided, many acknowledge the strategic importance of social media within their business and the many opportunities it can present. Others focus solely on the issues that it can create. 

Whatever your view, the key is to ensure that any risks are identified and managed accordingly. The potential risks are many and could include discrimination issues, risks to the employer`s reputation, the risks that confidential information could be leaked online, productivity and data protection issues. 

The most frequent complaint from employers relates to things posted online by one employee about another and the risk of a discrimination claim where the comments could amount to harassment and where the employer could be held to be "vicariously liable". 

Here, the employer`s first line of defence is to say that it has taken all reasonably practicable steps to prevent the harassment. For this defence to succeed it will be necessary for the employer to identify a social media policy and/or disciplinary procedure, clearly setting out that online conduct, even outside of the workplace, should be of an acceptable standard. 

Employment documentation should be reviewed to ensure relevance in relation to social media usage. This should include revised confidentiality provisions in the Terms and Conditions of Employment, up to date disciplinary rules and even a social media policy to impose guidelines in the workplace setting out restrictions on usage, monitoring by the employer and clear guidance in relation to the disclosure of confidential information and the use of unacceptable and possibly discriminatory comments about both colleagues and clients at home and at work. 

Case highlight

In the case of Preece v J D Wetherspoons, an employee was deemed to have been fairly dismissed for making derogatory comments about customers on Facebook whilst at work. Here the employer had a clearly drafted policy which gave a clear warning that employees might be disciplined for making derogatory comments on Facebook about customers, staff or the organisation. 

In the more recent case of Whitham v Club 24 Ltd T/A Ventura, Mrs Whitham employed by Club 24 (a Team Leader for Skoda, part of the Volkswagen Group) whilst at home and having had a difficult day at work, posted a comment on Facebook which her colleagues and Facebook friends brought to the attention of her line manager. They believed that the comments could have a detrimental effect on the relationship between the Company and Volkswagen. 

Mrs Whitham was then dismissed for misconduct on the basis that her comments could have damaged the relationship between the Respondent and Volkswagen.

The Employment Tribunal concluded however, that Mrs Whitham had been unfairly dismissed as the sanction, dismissal, for a "not too horrendous remark" in the words of the Manager who had heard the appeal, fell outside the range of reasonable responses. 

Posted on: 09/11/2011

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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