Welcome to
Gelbergs Solicitors

This is the third of our series of blogs about practical employment law and HR issues
in business.

No.3 – Facebook and Twitter – Is Social Media a Nightmare or a Benefit
for Employers?

• As a business owner, are you worried about what effect social media is having on your business, and in particular your employees’ use of it?
• Have you had problems with employees posting inappropriate or even damaging comments on social networking sites?

Most businesses are aware of the positive benefits of social media in promoting their products and services, and many large companies have employees dedicated specifically to that task. However, are business owners stopping to think about what harm can be done to their business by their employees, and ultimately what it could cost them?

Social networking issues in the Courts

Recent cases in the employment tribunal indicate that social media is becoming a real problem to some employers:

• A flight attendant was dismissed after her anonymous fictional blog called “Queen of the Sky”, had photos of her in uniform where she inadvertently revealed her underwear.
• A pub manager was dismissed for writing derogatory comments on Facebook at work about two abusive customers.
• A prison charity worker was dismissed for sending a “please send it on” racist and sexist email to a colleague.

A common reason for dismissal cited by the employers was that the employee brought their business reputation into disrepute. Gross misconduct was another reason used to justify the dismissals, along with breach of the employer’s social media policy.

Social networking and confidentiality

It is important not to forget that, in the excitement that surrounds social networking, traditional issues such as breach of confidentiality by employees, non-genuine sickness absence, and online harassment and bullying of colleagues can all arise.

Social networking sites are, after all, merely a new and modern form of communication. A breach of confidentiality on a social networking site could therefore be just as significant as if it were in a handwritten letter, and perhaps even more so given the extent of the potential audience.

Similarly, harassment and bullying is not diluted simply because the method of its communication is a website rather than, for example, a verbal comment at work.

Finally, evidence is evidence: if an employer discovers that an employee is committing misconduct via a social networking site rather than by a more traditional method, this does not invalidate or weaken the relevance of the information.

Social networking and privacy

A word of caution: social networking sites all include ‘private’ as well as ‘public’ elements. Employers must be careful that their investigations into alleged employee misconduct do not cross the boundary into private communications between an employee and his or her close friends and family.

The issue of privacy at work and social networking is a developing area of law and one that particularly calls out for expert advice.

How can businesses protect themselves from this sort of damage?

Whilst it is possible to limit the use of social media at work, it may not be conducive to your business when you want employees to be promoting your business online. Some companies do not allow Facebook to be accessed on work computers, but with smartphones becoming more common, it is unrealistic to try and completely prevent employees from accessing social networking sites whilst at work. It is more reasonable to limit this to lunchtimes and breaks, i.e. in their time rather than yours.

It is impossible to police your employees’ use of social networking outside of work in their personal lives, but where that activity impacts directly on your business, you are entitled to exert some limited control. You should be mindful however, that freedom of expression, privacy and possibly whistleblowing may play a part here, so it is sensible to get some legal advice before implementing such measures.

Adverse publicity can be very harmful, from the small local business to the nationwide household name. There are steps you can take to protect your business from the outset, such as:

• A well-written and robust social media and IT policy
• Issue helpful written guidance to employees on using social media for business purposes
• Where justified in certain professions and sectors, issue guidance for employees on using social media for personal purposes

Points to remember when thinking about implementing a social media policy

• Get your solicitor or HR department/consultant to prepare a policy which fits your business and your business needs
• A good policy will set out what behaviour is unacceptable both inside and outside of the workplace, and what in particular will be considered gross misconduct
• It will set out clearly the potential consequences, e.g. disciplinary action which may include dismissal.
• It should be communicated clearly to employees, in writing and if possible alongside training sessions (attendance records should be kept)

What can businesses do about it, if it happens?

• Ensure that the social media policy is interpreted and applied reasonably and sensibly, particularly when deciding what action to take.
• Ensure that the policy is applied consistently across the workforce.
• Get some legal advice early on from a specialist employment lawyer, preferably before any employee is dismissed.
• If appropriate, and depending on the scale of the situation, get assistance from a PR professional to try and limit the reputational damage to your business

Emmajane Taylor-Moran, Solicitor at GelbergsLLP and Michael Paulin, Counsel at 3 Paper Buildings Chambers

Gelbergs Solicitors is based in Islington, London N1 and offers a comprehensive multi-disciplinary HR advice and employment law service to employers. We would be happy to hear from any business owners who would like a free assessment of their employment contracts, and HR policies and procedures.

Call us on 020 7226 0570 and ask for Emmajane Taylor-Moran or Jane Manville. Our website can be found at www.gelbergs.co.uk and twitter at @gelbergs.

Michael Paulin is a highly qualified barrister specialising in employment law at 3 Paper Buildings, which is a Chambers in Central London providing legal expertise and advocacy to solicitors.