EXECUTIVE REPORT
Social responsibility
Social media can be a powerful business tool, but Adam Bernstein suggests that its use by employees should be managed carefully.
Social media can be extremely useful, with many businesses utilising platforms to promote their brand. However, the issue of individual members of staff getting involved is widely debated, as misuse can potentially result in damage for both employees and the organisation they work for.
While employers might believe prolonged use of social media will affect productivity, for Mark Stevens, an associate in the employment department of law firm VWV, one of the most significant risks is, however, the potential for inappropriate use, as “misuse can translate into internal difficulties with problems arising due to bullying and harassment via social media.” It is common for social networking sites to be used by employees as a communication tool, both in and outside working hours, and staff could cross the line with conduct amounting to harassment, discrimination or other unlawful behaviour. As Mark Stevens has seen, this can have significant consequences for employers as they could be found liable.
His advice is to develop a policy setting out what is acceptable when employees use the internet, email, phones and networking sites. “This should remind them that misuse of social media or inappropriate postings can amount to misconduct, for which they might be disciplined. The policy should tackle the firm’s view on what is acceptable in terms of personal use of social media, as well as how the organisation will deal with employees who post inappropriate content on social media.” He adds that, where staff are expected to post on the organisation's behalf, appropriate rules should be set on the topics that can be covered.
Training and implementation
Firms will want to check on what staff are posting, which is why Mark Stevens says that any monitoring “should not go further than necessary, and employers should avoid implementing restrictions which are invasive or impractical. Where necessary, employers could also consider implementing training for other members of staff to reinforce the issues raised in policies.”
If a breach of social media policy occurs, employers should seek to deal with any online matters in the same way that they would deal with offline issues. This, says Mark Stevens, might mean going through a disciplinary process with the employee where necessary, but he adds
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that “it’s important to be consistent and employers should be willing to be flexible where the harm suffered by the business is minor.”
He says that case law suggests some employers have been too severe. “One example is Whitham v Club 24 Ltd in which an employee made derogatory comments about her workplace on Facebook, one of which stated: ‘I think I work in a nursery and I do not mean working with plants’.” The employee was dismissed but an employment tribunal found that this dismissal was unfair and that the comments made by the claimant on social media were “relatively minor”. Where a disciplinary process does take place, various factors should be taken into account, such as an employee's prior disciplinary record. Other factors include the relationship between the employee/employer and whether the relevant action has broken down the trust between the two. “Many employment tribunal decisions,” says Mark Stevens, “also emphasise that there must be a genuine belief that there has been damage to the employer's reputation rather than an assumption that the conduct is likely to cause damage.”
Businesses should have a policy setting out what is acceptable when employees use social media.
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As a footnote, electronic communication is now almost universally used by all types of
organisation. It is, however, important to realise that what may appear to be an informal method of communication may inadvertently enter an organisation into legally binding contractual arrangements. There have been a series of cases in recent years which have decided that contracts may be concluded by email and fax, and it is logical that texts and social media posts can do the same.
To form a contract under English law, several elements need to be present: an offer; acceptance of that offer; consideration (payment); an intention to create legal relations; and certainty of terms. Cases have suggested that the courts will interpret electronic signatures in the light of what the ordinary email user would consider to be a signature - such as signing off with a name, title or informally with a forename. Also, any member of staff could potentially enter into a legally binding contract on behalf of an organisation by adding their names to, or not removing their email signature block from, the end of a communication before sending. If it is reasonable for the recipient to assume that the member of staff had the authority to enter into the contractual negotiations, the communication could be binding, even though the member of staff may not have actual authority to do so.
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