We looked at online networking back in the summer of 2010, but since then there has been a huge growth in ‘social media’. This month’s Q & A addresses the impact social media potentially has on the workplace. The Trades Union Congress has warned that the 3.5 million users of Facebook are “HR accidents waiting to happen”. Given the widespread use of such websites now, social media is an issue few employers can afford to ignore.
Q: What is social media?
A: Social media is the technology that enables online users to interact and share information, be it video, audio, photographs or just text. The sharing of such information can be done publicly or privately, depending on the particular site and the settings individuals choose. Other examples apart from Facebook are LinkedIn, Twitter, MySpace, Wikipedia and individual blogs.
Employers use compromise agreements as a mechanism for preventing possible future complaints to a tribunal. They are recognised by statute and are the only way an employer can be sure that an employee will not bring any claims against it. By entering a compromise agreement, the employee literally compromises his or her right to bring any claim, with a couple of exceptions.
Q: Do we need a social media policy?
A: The answer is a definite ‘yes’. Such a policy will allow you to minimise the risks associated with employees’ use of social media by proactively defining the acceptable use of it within the workplace, making it easier to justify disciplinary action in appropriate cases when the policy is breached. Policies will vary between different employers and we advise you to contact us for tailored advice.
Q: What kind of impact can social media have on my workforce?
A: The potential risks arising from social media are as follows:
- Discrimination – anti-discrimination laws can hold employers vicariously liable for discrimination by their employees. For example, if an employee makes a derogatory remark about another employee online, it could amount to unlawful harassment and the employer could be held liable, whether or not the employee is using the employer’s equipment to make the comment. You can limit the risk of such claims by putting in place and enforcing robust equal opportunities and anti-harassment policies, ensuring all managers (and staff if possible) are given regular appropriate training;
- Confidential information – you may be exposed to the danger that employees may post confidential information online. Your employment contracts should be reviewed to ensure they contain confidentiality clauses to address this issue;
- Recruitment – there is a discrepancy between the percentage of applicants who believe that online information could affect their job (15%) and the number of employers who said they rejected a candidate based on their online reputation (41%). It is clear that employers value online information when recruiting. Given the types of information revealed on blogs or social networking sites, a claim for discrimination is a real prospect if such information is used to reject a candidate in a discriminatory manner, e.g. because of a candidate’s race, sexual orientation or religious beliefs;
- Loss of productivity – access to social media on the employer’s equipment in work time can lead to reduced productivity. If the employer allows access during working hours it should be very clear about the parameters;
- Loss of reputation – often the employer’s main concern is to protect its reputation, but damage will often be speculative and difficult to substantiate. Furthermore, the employee may be using his own equipment in his own time; and
- Privacy – an employer’s right to protect itself may also put it on a collision course with an employee’s rights of privacy and freedom of expression .
Q: What solutions are there?
A: There are several steps you can take. The first, and perhaps most important, is to introduce an electronic communications, or social media policy, that covers employees’ use of such sites, whether during or outside office hours and whether or not they use your equipment. Disciplinary action for a breach of this policy outside office hours will only be justified where the breach risks some real kind of damage to you, such as dissemination of confidential information, liability for discrimination or reputational damage.
It is important to realise, however, that a policy is only as good as its enforcement. You need to ensure that the policy is made widely available and consistently enforced.
You also need to carefully consider whether you block or impose an outright ban on any access to social networking sites at work, but this does not cure the problem of ‘out of hours’ activities and is likely to be unpopular.
Given that the main source of the issues arising from blogging and social networking websites is the perception that these sites are ‘private, it is often effective for you to draw to employees’ attention that anything they post is, in fact, public and consequences can flow from online behaviour.
In order to protect yourself against potential discrimination claims, you should respond promptly to complaints of harassment or discrimination made via social media, just as you would in non-social media contexts, in accordance with your equal opportunities and anti-harassment policies.
Finally, where a policy is introduced, it needs to be regularly reviewed and updated. Currently there is minimal case law concerning social media, but this is likely to be change in the near future.