Social Media And The Workplace February 2012


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A guide to the impact of social media on the employment relationship.

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Social Media And The Workplace February 2012

  1. 1. SOCIAL MEDIA AND THE WORKPLACEThis guidance note is intended as a useful overview of the main points to consideraround the use of social media in the workplace. It does not constitute legal advice, andwe recommend that appropriate advice tailored to your specific circumstances is alwayssought at an early stage.We are seeing more and more clients asking us for help with social media relatedemployment problems. With the continuing advances in technology giving 24/7accessibility to the web from almost anywhere, the increased use of social media as abusiness to business or business to consumer marketing tool, and the blurring of thelines between ‘work time’ and ‘social time’, it is easy to see how employers need to getto grips with the potential challenges –and opportunities- that social media presents.Social media – what is it?In broad terms social media can be described as “a group of internet based applicationsthat allow the generation and exchange of user-generated content”. Some of the mostpopular applications include Facebook, Twitter, the professional networking site LinkedInand the digital media sharing site Flickr.Potential issuesSocial media presents challenges for employees on a number of levels. For example: • Recruitment – can you/should you use social media to research candidates? • Protecting confidential information. • Legal liability for an employer for online bullying and harassment. • Reputational damage by employees actions online. • Productivity – what constitutes acceptable use?By understanding these challenges there are some easy steps which businesses can taketo set the standards for how social media should be used within their organisation andlimit their legal risks.Social media policyAt times it seems like everything requires a policy, and before you know it youremployee handbook runs to an unwieldy 500 page tome. There is certainly a view held
  2. 2. by some in the HR community that having a social media policy displays a lack of trustand is an unrealistic way of trying to control staff. We disagree, and recommend that apolicy on social media is appropriate, not least because you can shape yourorganisation’s expectations for employee use of social media – whether that is acomplete ban on workplace use or promoting it as a networking or business developmenttool. Bear in mind though that restrictions which are disproportionate can: • Undermine employee morale; • Lead to employee non-compliance; and • Ultimately not achieve any real protection for the company.RecruitmentThere is nothing to prohibit an employer from using social media to find out informationabout a candidate. However, before deciding whether or not it is appropriate for yourorganisation to do so, consider the following: × Discrimination – more likely information will be obtained which could lead to inferences of discrimination if the candidate is rejected; × Data Protection Act is engaged if information obtained online is recorded or used; × Candidate should be given the opportunity to comment on the information’s accuracy; and × Candidate should be told about the employer’s vetting and verification exercises.Steps to take:  Ensure any enquiries are proportionate;  Inform candidates about your vetting and verification exercises;  Use online checks after short listing or first interviews to limit the risk of a claim that decisions were discriminatory; and  Seek clarification from the candidate of any information obtained online.Confidential and proprietary informationThe obvious risk here is that confidential information is posted online – ranging from anemployee acting wilfully and intent on damaging their employer’s business to an
  3. 3. employee including sensitive information posted in an online CV. Disclosing or misusingconfidential information could result in: × A breach of the employment contract; × Embarrassment to the Company; × A breach confidentiality between the company and a third party putting the company in breach; or × Damage the Company’s ability to preserve its intellectual property rights.Steps to take:  Impose controls on the use of LinkedIn;  Consider express contractual obligations regarding the return of information – such as that obtained online;  Consider restrictive covenant wording; and  Consider amending the employment contract and the social media policy.DiscriminationIt is well established that an employer could be vicariously liable for acts ofdiscrimination by their employees. × Tribunals apply a wide to test to the concept of whether or not an employee is ‘acting in the course of employment’. × A employer could still be liable if the employee is using their own equipment, not physically at work and not acting under the instructions of an employer.Steps to take:To stand a chance of successfully relying on the ‘reasonable practicable steps’ defenceyou should:  Set out in your social media policy a prohibition on harassment and bullying;  Ensure any anti-harassment or equal opportunities policy is also consistent;  Deal with any complaints of online bullying or harassment as you would for similar complaints made in other contexts; and  Include reference to online harassment in any training provided on harassment.
  4. 4. ReputationThe immediacy and visibility of social media applications means the scope forreputational damage is high. Consider the Virgin employees who referred on Facebookto passengers being ‘chavs’ and the Waterstone’s employee who referred to hisemployer as ‘Bastardstone’s’ in his blog.  Consider a ban on negative comments about the company, its employees or customers;  Use the social media policy to set clear standards of acceptable behaviour;  Consider amending your contracts of employment to prohibit defamation; and  Engage with your employees about how best to maintain a positive corporate image.ProductivitySince the use of the internet has become increasingly prevalent, most employers willalready have an acceptable use policy covering both internet access and email use. Youshould consider whether or not it is appropriate to update those policies to refer to theuse of social media – you may take the view that access to and use of social media canalready be adequately dealt with through existing policies.  Ensure your policies set out what constitutes acceptable use;  Train employees on the policy (social media as a general training topic is a useful one to cover); and  Monitor compliance.SummaryThe following recommendations are made in the recent ACAS research paper“Workplaces and Social Networking”: 1. All employers should have a policy on internet/social media use. 2. The policy should set out clear and explicit expectations and the consequences of violations. 3. Keep it simple – the message that online conduct should not differ from offline conduct may suffice. 4. Consult with staff on the policy, communicate the policy and review it. 5. Ensure that adequate mechanisms to raise grievances exist. 6. Consider the benefits that social networking can offer.If you have any questions or comments arising from this note, please feel free to contactPeter Beisty (contact details below) for a no obligation discussion.
  5. 5. mpm legal is a specialist employment law practice. Our firm was created based on anawareness of the changing marketplace in the provision of legal services and a desire tobreak free from the traditional full service law firm. We are committed to delivering alevel of service commensurate with much larger law firms at a lower cost.We like to build lasting partnerships with our clients and deliver advice which ispragmatic, clear and cost effective.The breadth of our collective experience encompasses advising FTSE 100 companies, USowned global companies and owner-managed businesses.Our typical day to day work includes advising HR teams and in-house counsel on: • Employment tribunal litigation – covering all types of cases from standard unfair dismissal cases to complex multi-claim cases. • Workforce management – complex grievances, disciplinary and dismissal procedures, collective redundancy consultations, business restructures, TUPE transfers, managing sickness absence, dealing with protected disclosures and promoting equality of opportunity. • Business protection – monitoring staff during employment, securing information and trade secrets, taking pre-emptive steps following the resignation of an employee and restricting the activities of departing employees. • Contracts and policies - contracts of employment, service agreements, cross- border secondment agreements, bonus and commission schemes, salary sacrifice agreements and compromise agreements.If you think we could add value to your organisation then please contact us: Mark Minns Adrienne Brown Peter Beisty 0118 951 4572 0118 951 4571 0118 951 4573