Employees’ use of social media may be inappropriate

Social media networks have revolutionised the way in which many businesses operate both internally and externally.  This has resulted in a number of cases in which the courts and the tribunals have examined how UK employers can:

  • Manage employees’ use of social media (where use is excessive, inappropriate and/or leads to loss of productivity)
  •  Protect themselves against liability for employees’ actions on social media sites
  • Monitor their use of social media networks without infringing privacy
  • Protect themselves on the departure of an employee

Employees’ use of social media sites may be inappropriate if their use of these sites during working hours is excessive or because the content uploaded is inappropriate.  Employers can discipline or even dismiss employees in these circumstances.  It is, however, advisable to have in place a documented social media policy which is clearly worded if an employer wishes to be able to rely upon a breach of it in order to discipline or dismiss.

For example, in one case, two sisters were dismissed for excessive use of social media sites including Facebook.  The employer’s IT policy permitted employees to access the internet “outside core working hours”.  The employment tribunal held that the dismissals were unfair because the policy was unclear about what “core working hours” meant.

It is established law in the UK that an employer can be liable for acts of discrimination carried out by its employees.  This means that inappropriate or offensive posts on social media sites by an employee about a colleague can land the employer in an employment tribunal and such cases can result in substantial awards of compensation for harassment.

In addition, case law makes it clear that the phrase “in the course of employment” which is used in the relevant legislation, is construed broadly and can include acts which took place outside the workplace or on social media sites.

Employers can manage these risks and can limit their liability by having appropriate policies in place regarding acceptable usage.  Such social media policies should:

  • Specify to what extent employees can access such sites and when including business and personal use.
  • Make clear that employees should not disparage customers, suppliers and colleagues.
  • Make clear that employees should not disclose confidential information or trade secrets.
  • Clarify the consequences of any breach.
  • Confirm that the employer reserves the right to monitor employees’ use of email and the internet including access to social media sites.
  • Make clear that employees should not hold themselves out as speaking on behalf of the company. unless authorised to do so.

Protecting the business on the departure of an employee

Employers face challenges in this area with regard to both the departure of staff who have access to company social media accounts but also staff who use their own social media accounts for work purposes.  Typically, when an employee joins a new company, he or she will update their LinkedIn profile, triggering an update to all of the contacts which announce the details of the new employer.  LinkedIn’s own terms and conditions provide that the ownership of a LinkedIn user account remains with the individual.  However, recent cases have cast some doubt upon this and whether or not the employer can argue that a LinkedIn account used by an employee for business purposes should belong to the employer.  Employers should make sure that those who create and manage social media accounts on behalf of the company are under an express obligation in their contract to release passwords and other login details on termination of employment.  Ideally, a number of employees should have access to the account to avoid a situation arising where the employee who is leaving refuses to disclose this information.

Very often, senior employees have clauses in their contract which prevent them from working for a competitor or soliciting / dealing with clients and poaching staff following the termination of employment.  Employers should be alive to the risks posed by the use of LinkedIn and should  tailor these restrictions to provide that updating the employee’s LinkedIn profile to refer to a new employer and setting up the account to ensure that the employee’s contacts receive notification of this will be regarded as an act of solicitation or dealing with clients.

Whilst technology and social media may make it easier for a disgruntled and departing employee to walk away with client lists and other confidential information, on the other hand, it is easier for employers to detect such action by employees.

Employers should anticipate these issues and should have a basic social media policy in place in order to be better protected when employees leave.

Having specialised in Employment law for over 25 years (yes, that long) I believe in providing practical, focused advice to businesses and like to deliver this in a concise no-nonsense fashion.
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