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COMMENT Legal Matters
The growth in popularity of social media is creating issues, as well as opportunities, in the workplace. Here, Martine Nathan, Partner at Teacher Stern Solicitors, highlights some of the key areas employers should look at when considering their policy on social media.
Martine Nathan
increasingly confuses employees’ work and personal lives. Employers will have a range of attitudes to the strategic importance of social media to their culture and business and, therefore, a corresponding range of responses. Some will ban it, others will positively encourage it. Either way, from an employer’s perspective there are a number of key risks they need to be aware of and manage. These primarily relate to:
B
Discrimination: Anti- discrimination laws can hold employers ‘vicariously’ liable for discrimination by their employees. Where comments are made about another employee online that may amount to harassment, liability can arise for the employer, whether or not the employee is using the employer’s equipment. To avoid liability, an employer may contend that the employee was not acting ‘in the course
logging, tweeting and accessing networking websites
of employment’, but tribunals apply a wide test to this concept. If an employer takes all reasonably practicable steps to prevent the harassment, it will not be liable. Appropriate policies and training should therefore clearly indicate to employees that online behaviour, even outside the workplace, should conform to appropriate standards.
Loss of productivity: Access to social media on the employer’s equipment in the employer’s time can lead to reduced productivity. If the employer allows access during work they should be very clear about the parameters.
Privacy: An employer’s desire to protect itself may also put it on a collision course with an employee’s rights of privacy and freedom of expression. Private life includes social interaction and the right to develop relationships with others, even at work. Accordingly, if an employer dismisses an employee in breach of the rights enshrined in the European
Convention on Human Rights, the dismissal could be disproportionate and therefore unfair leading to a damages claim against the employer.
How to deal with the issues: Employers could 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. Employers would also lose the opportunity to exploit any consequential business advantages. Given that the main source of the issues arising out of blogging and social networking websites is the perception that these sites are ‘private’, a more effective way for employers to manage these issues may be to draw to employees’ attention that anything they post is, in fact, public, and consequences can flow from online behaviour.
Also, the publication and implementation by employers of a specific social media policy may set clear parameters about permitted use.
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