Social media has revolutionised the workplace

Social media has revolutionised the workplace in so many areas, but many employers are still cautious about embracing its use, as this advance in technology is not without its risks.

Twitter has over 140 million active users worldwide, generating over 340 million tweets daily and Facebook has almost a billion registered users. The popularity of mobile devices, such as smartphones has meant social media has become a part of everyday life and the lines between work and personal use sometimes are blurred.

Jean- Pierre Van Zyl, head of employment at Square One Law said: “Social media is changing the way we communicate not just with our friends, but also the way in which businesses are run. Social networking sites such as LinkedIn and Twitter now enable companies to raise their profile and disseminate information far quicker and more cost effectively than ever before, but on the down side, case law is now emerging on employees being disciplined for what they do or say online, both in and outside of the workplace.

“One of the greatest concerns for an employer is where an employee may express offensive views or say something derogatory about the company, its clients or their colleagues online. Increasingly, social networking sites are being used by employees to vent their frustrations about work. Many individuals using social networking sites fail to appreciate, or underestimate the potential ramifications of their online conduct.

“Companies have had email and internet policies for some time and are now adding social media policies. It is vitally important for both the employer and the employee so that they both know where they stand.

“The policy needs to be clearly explained as part of the induction process and the parameters of acceptable standards of online behaviour discussed. It needs to be made clear that derogatory and discriminatory comments aimed at the company or any of the employees could be considered grounds for disciplinary action.

“A good social media policy will remind employees of privacy settings, particularly that posts are not necessarily private and employers can and may view what an employee has written online and will refer to the company’s bullying and harassment policy. It should reference any relevant legislation such as copyright law and explain brand rules.

“Also, if social media is used for business purposes, it should be made clear what information an employee can disclose and the opinions they can express. All of this needs to be covered in the induction process, but it is also vitally important that when the policy is updated, all employees are made aware of the updates.”

In general, an employer should treat misconduct arising from social media in the same way as any other form of misconduct, although ACAS does advise employers to adopt a common-sense approach.

HR managers are experiencing far more incidences where an employee calls in sick but then posts something on Twitter or Facebook implying this is not the case. In Gill v SAS Ground Services Ltd, the employer found that an employee had taken part in an event at London Fashion Week while on sick leave. Her Facebook page referred to her auditioning models and choreographing a fashion show and as a consequence, an employment tribunal found her dismissal for gross misconduct fair.

However, employment tribunals also take into account whether there is any evidence of reputational damage. In the case of Taylor v Somerfield Stores Ltd, a video posted on YouTube of an employee “striking” another with a plastic bag filled with other plastic bags was only on for three days and only viewed eight times including three times by managers, so although the employee was dismissed for “gross misconduct for posting inappropriate film footage onto the YouTube website which brought the company into disrepute”, a Scottish employment tribunal found the dismissal unfair on the basis of the employees genuine apology, the absence of any evidence the employer’s reputation had been brought into disrepute and a finding the sanction was too harsh.

Liz Cotton, a senior associate in Square One Law said: “When an employer is considering disciplining an employee for Facebook postings made outside of work, careful consideration needs to be given as to whether a work-related context can really be inferred on the facts.”

In Smith v Trafford Housing Trust the High Court concluded despite an employee’s Facebook profile identifying himself as a manager of the employer and being  accessible by “friends” and “friends of friends”, including 45 colleagues, it was a medium for personal or social, rather than work related, information and views.

Liz added: “Whilst having a clear policy in place which prohibits conduct which brings an employer in disrepute, both in and out of work is certainly helpful, employers can’t presume the policy will bite in respect of all conduct outside of work and in the absence of a clear work related context a dismissal is likely to be unfair.

“It is also worth noting that in cases where disrepute or reputational damage are being argued, tribunals are not likely to look favourably on employers who find that because the policy has been breached it must follow that the company has been brought into disrepute or that damage has been done. Employers are advised to investigate to establish if there is a real risk of or actual damage and wherever possible to provide supporting evidence of this.

“We can expect more case law on this subject in the near future and employers are advised to take advice on this complex topic when in any doubt.”

For further information please contact Jean-Pierre Van Zyl or Liz Cotton at Square One Law 0n 0843 224 7900.