It goes without saying that social media is now ubiquitous and ever-changing, but with the law ruling that employers can be held vicariously liable for the actions of employees, what can businesses do to protect themselves from legal threat?
Initially set-up for friends to stay connected, old flames to re-kindle romances, and families to share holiday snaps, social media now penetrates every facet of our society – and few workplaces are exempt from its influence. In fact, it is now more unusual for a business not to use these platforms, such is social media’s all-pervasive hold.
With Facebook’s 1.5bn users worldwide and Twitter’s 200m, it clearly represents a fantastic tool to promote your business, reach hitherto untapped audiences, attract new staff and allow clients to feel engaged with the services being provided, but it’s also a double-edged sword that can be just as compromising as it is engaging. With staff increasingly bringing their own devices into the workplace and blurring the lines between public and private, it can also be a major security concern. Fundamentally, many still do not realise that the difference between a chat on Facebook and one in a bar is that social media posting constitutes publication and dissemination to a potential audience of millions.
It’s therefore crucial for companies to consider the extent to which they embrace social media. For instance, with access to social networking sites during working hours potentially reducing productivity, do they need to consider restricting usage? Certainly, they have to focus on how social media informs their policies, from sales and marketing, to recruitment and retention, motivation and conflict resolution.
There have, of course, been numerous instances of stories in the press about employees tweeting their way to a P45. There have been inappropriate statements such as the government worker who was sacked after making anti-badger culling tweets, or when 13 Virgin Cabin Crew staff were reportedly dismissed for calling their customers “chavs”. Even the medical profession is not immune from such misuse. In September 2013, two NHS nurses were dismissed for tweeting about patients whilst on duty. The nurses joked about vulnerable patients’ physical appearances and toilet habits, describing one patient as looking like a corpse.
It is evident from this small selection of cases that the use of social media both inside and outside of work has impacted on employers, particularly where an employee’s actions on social media sites transcends the virtual world and becomes a serious workplace issue. Such activity has seen employers use online entries as evidence in disciplinary proceedings. Postings of a concerning nature also undoubtedly bring a business into disrepute either because they amount to defamatory remarks or because the employee’s unorthodox views or questionable behaviour is associated in a negative light with the business or its staff.
A key issue for businesses is whether or not a posting made by an employee amounts to discriminatory conduct for which they will be liable. Under anti-discrimination laws where an employee makes discriminatory comments online, or say on Twitter, about another staff member, which is considered harassment, the employer can be liable. Most importantly, successful discrimination claims attract uncapped damages in the Employment Tribunal, which aims to compensate the employee fully for all losses including any hurt and distress caused.
In January, an employment tribunal hearing was told that the managing director of a Surrey-based business had asked his openly gay employee if he had AIDS when he saw that he was ill at work. Office manager Jack Howell said he was ‘mortified’ when his boss Peter Chambers made the comment after he had come out of the toilet looking unwell.
Chambers accepted at the hearing that the AIDS comment was ‘inappropriate’ but said it was simply part of ‘office banter’. The issue was clouded, nevertheless, when the company denied discriminating against Howell and counter-claimed that he had made disparaging comments about Chambers’ wife, who also helps to run the business, in a Facebook post. However, Mrs Chambers accepted that the company did not have a social media policy in place in regards to the Facebook post. The tribunal is continuing.
In the case of Otomewo v Carphone Warehouse Ltd, Otomewo worked at Carphone Warehouse. Two of his colleagues posted a status update on his Facebook page without his permission saying, “finally came out of the closet. I am gay and proud”. Regardless of who posted it, it was ruled that the employer was liable for their employees’ conduct, which amounted to harassment on the grounds of sexual orientation.
On this occasion, the comment was posted during working hours using Otomewo’s phone. The Employment Tribunal will apply a wide test in determining whether an act or conduct was done “in the course of employment”. The fact that an employee is at home, or is using his or her own IT equipment, or not acting under the employer’s instructions, does not mean that the employer won’t be liable.
It’s clear then that any conduct which has an impact on an employee’s ability to do their job, or causes offence to other employees requires swift action. Allegations of online harassment should be handled in the same manner as allegations of face-to-face workplace harassment.
In addition, social media has created a layer of complexity with regard to limitation periods to discrimination claims. The normal rule of thumb is that an employee has three months to file a claim from the date of the discriminatory act.
So how does an employer embrace social media, whilst ensuring that employees do not abuse this important tool? It’s all about proactive preventative measures. The key is to set out a robust social media policy, which is shaped to fit your business. Tribunals favour policies which set out clear guidelines about what is and isn’t acceptable during work time, and the sanctions of breaching the policy, so the more precisely defined, the better.
The social media policy should be cross referenced with disciplinary, equal opportunities, and harassment policies, ensuring that employees understand the repercussions arising from their use or misuse of social media. By doing so, an employer will minimise the risk of being held liable for an employee’s actions, prevent confusion amongst staff about what they can and cannot do, protect employees from discrimination and bullying, and ensure data protection whilst making it easier for an employer to pursue disciplinary action, where appropriate, for misconduct against cyber bullying wherever and however it is perpetrated.
Further preventative measures include ensuring that managers receive training on social media policies so they may in turn train their staff. This will ensure that all employees are familiar with company policy and also allows for an open forum to discuss any concerns which may arise. It will certainly be more difficult for an employee to claim ignorance of a social media policy if specific, tailored training has been undertaken. Having an emergency plan in place can also pay dividends in the long run.
Ultimately, a social media policy is pointless if it is not going to be enforced. It is therefore important to monitor employees’ use of social media – but before doing so, there must be a term in an employee’s contract which permits you to do so.
Essentially, tribunals can be won and lost on the strength of the employer’s social media guidelines, or indeed its lack of, so preventative measures must be a priority.
Written by Emily Plosker of Brahams Dutt Badrick French LLP.