Ten years ago, it was not that common for employers to provide specific guidelines for social media use. However, in today’s increasingly digitised workplaces, a social media policy forms an essential part of the employee handbook.

With social media touching many areas of modern life, both in and out of the workplace, misuse can potentially lead to issues such as bullying, discrimination. victimisation, harassment, reputational damage, and breach of confidential information.  In other words, any issues that can arise in the workplace through conventional means of communication can also arise in relation to social media communications – perhaps to an even greater extent, given the ease with which social media facilitates the wide broadcasting of views.

As an employer, setting clear expectations for appropriate use of social media for employees and managers in line with your company ethos and values can help prevent such issues.

Social media usage at work

You may wish to include guidelines on social media usage during work hours in your overall IT or Communications Policy. A blanket ban on social media may be unpopular and hamper your ability to use social media positively for the organisation’s benefit. Being clear, however, on what is not allowed in your organisation with respect to social media use on company time and/or IT equipment will help prevent misuse and misunderstanding. For example, you may wish to allow reasonable personal use of social media during lunch hours only. Restricting access to social media during work hours may not just be a consideration around trust and employee productivity, but also driven by concerns around increased vulnerability to IT security risks. You may feel it is necessary and justified therefore to restrict usage via firewalls or other cybersecurity measures.

Company social media accounts

Where employees are responsible for managing or posting on company accounts, in effect representing the voice of your organisation, you will want to have very clear guidelines and expectations around privacy, password management, responsibility for content shared and how those posting on your behalf are expected to conduct themselves online. You will also want to include details of repercussions or sanctions that may be taken for any deviations from your organisation’s standards for corporate social media accounts. A clear policy and guidelines for employees creating and sharing content can actually help you encourage and better leverage social media use for marketing, business development, and recruitment and employee retention.

Personal accounts

You may wish to incorporate restrictions on employees identifying their connection with your organisation on personal social media profiles, setting clear standards of conduct and performance, and reminding employees that their obligations towards their colleagues and their employer apply to their conduct online in the same way in which those obligations apply offline. In some contexts, where identifying as an employee may make sense, such as on LinkedIn, for example, a good policy can set guidelines on using company branding and remind employees of their confidentiality obligations and how social media use fits with other firm policies. The crucial point here is that expectations of appropriate conduct are clearly identified and communicated.

Training

As with any of the policies in the employee handbook, training can help set expectations. Ensuring that employees understand that social media use, even on personal accounts outside work hours, can reflect on your organisation, and emphasising the importance of protecting confidential information and intellectual property and how social media use fits with your other policies, can help prevent problems.

Aligning to other policies

Your social media policy should be aligned to, and used alongside, other policies such as Disciplinary, Bullying & Harassment, and obligations of confidentiality. In cases of misconduct, any investigation and consequences should be clearly in line with your disciplinary process (including of course the statutory 3-step procedures) and applied consistently. Your response to online bullying and harassment claims should be sensitively handled and given the same process, care and consideration as bullying in other contexts.

Consequences of a breach of your policy should also be made clear, stating, for example, that they may result in disciplinary action, up to and including dismissal. If social media misuse can amount to gross misconduct in your organisation, being clear on this in your policy is advisable.

Case Law

Employment cases have highlighted that the lines between “in work” and personal use of social media “outside work” are blurry. Conduct which affects employees, or their work environment is not limited to taking place in the workplace itself and employers may be liable for any online misconduct which is “in the course of employment”. Misuse on a corporate account, during work hours or on company IT equipment is likely to be found to be work-related but dealing with inappropriate social media comments made outside of an obvious work context is likely to be very situation dependent.

Case law has not given definitive guidance, and in fact the Employment Appeal Tribunal has declined to “lay down fresh guidance for future unfair-dismissal cases involving alleged misuse of social media” indicating that cases are likely to be fact-sensitive. (Game Retail Limited v Mr C Laws, [2014] Info. T.L.R. 369).

If there is no connection between the views being expressed online by an employee and their employer, then there is a risk that any dismissal in response to such views will be found to be unfair or wrongful. In a case called, Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) the High Court found that an employee who was demoted for expression of views about gay marriage on a personal Facebook page had suffered a breach of contract, which also amounted to wrongful dismissal. Some dismissals where rude or inappropriate comments have been made out of hours on personal profiles about an employer’s customers (Preece v JD Wetherspoons Plc), or colleagues (Teggart v TeleTech UK Ltd) have been found to be fair, particularly where a connection to the employer can be made from the comments or profile.

Conversely, a case called Forbes v LHR Airport Ltd, [2019] I.C.R. 1558 established that expressions of personal views outside the workplace, with no connection to the employer, cannot be considered to be made during the course of employment and are not, therefore, the liability of the employer.

Risk of reputational damage is not an automatic catch-all to justify social media comments or posts as misconduct. Damage to reputation is likely difficult to substantiate and Tribunals may consider the extent of the possible audience of a comment and whether any loss has been caused to the employer. If claiming reputational damage, you may find you need to be able to point to the extent to which the content may have reached your customer base and/or what the loss has been resulting from that reach.

Conclusion

Social media usage continues to evolve and there can be no checklist or one-size-fits all approach.  Reputational and other risks can be reduced by developing a clear policy and guidelines that cover social media use appropriate to your organisation’s operations and values. It is advisable to provide examples of what constitutes appropriate and inappropriate use of social media and keep your policy up to date. It is also important to ensure that your social media policy is accessible, clearly communicated and trained out to staff. Applying the policy consistently alongside your other policies and conducting disciplinary processes as you would any misconduct or policy breach will also minimise potential employment claims. Essentially, managing social media guidelines should be about setting boundaries, not just to protect your organisation, but also to maintain dignity at work for your employees, so that it applies to forums outside the physical workplace.