Social media networks have revolutionised the way in which many businesses operate both internally and externally. Businesses now have to understand how social media use by employees impact them. Social media use by employees 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. Especially if their use of these sites during working hours is excessive. Sometimes the problem is 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. This policy must be 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. Such cases can result in substantial awards of compensation for harassment.
Case law makes it clear that the phrase “in the course of employment” which is used in the relevant legislation, is construed broadly. This can include acts that took place outside the workplace or on social media sites.
Managing the risks
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.
- Confirm it will monitor the use of 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 the departure of staff who have access to company social media accounts. Protection may also be needed for those 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. This can trigger 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. Whether or not the employer can argue that a LinkedIn account used by an employee for business purposes should belong to the employer is a moot point. Those who create and manage social media accounts on behalf of the company must be 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. This avoids a situation 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. The restrictions must include how an employee manages their profile when they move on. It must be clear that where an employees contacts include clients there should be some clause about those clients being used in the new company.
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.
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.
To quote a recent client review “. . . sharp understanding of the facts . . . clever resolution . . . appreciate Paul’s thoughtfulness and compassion”