Lindsays’ Partner and Head of Employment Ben Doherty highlights some of the key risks that employers face and the benefits of having a robust social media policy in place

From employees using online platforms to vent their frustrations with work to members of staff bullying colleagues over social media, stories of people losing their jobs as a result of their activities online are becoming increasingly common. As the internet continues to change the way we communicate, employers need to be aware of the risks and what can be done to avoid them.

• Bad-mouthing online – an employee posting negative comments about their work can be harmful to the business’ reputation. The extent of the damage depends on how public or private the statement is and, what has been said and whether the message can be or has been reposted elsewhere. Even statements which are not directly about the business can cause reputational damage if the employee’s profile names them as their employer.
• Bullying colleagues – employees using social media to bully or harass colleagues can have a negative impact on employee relations and productivity. It can also result in the targeted employees bringing constructive dismissal or harassment claims against the business.
• Socialising posts when off sick – employees who call in sick and then post photos of themselves going out on social media appearing well is a common situation which can aggravate colleagues and affect morale.

Employer actions must be reasonable
Employers who rush to discipline or dismiss employees in any of these scenarios without investigating the facts or considering the severity of the situation risk claims being brought against them. They have a duty to act reasonably which means the disciplinary action taken must be proportionate and the procedure followed must be fair. Employers should also be aware that disciplining an employee for breaching the social media policy outside of working hours may only be acceptable where there is damage to the employer.

Minimise the risk
The best way to prepare for these situations and to minimise risk is to have a clearly worded social media policy. The policy should contain rules on the use of social media during working hours and remind employees’ of their confidentiality obligations. It should also set out what actions are prohibited, for example, making derogatory remarks about their employer or adding business contacts to personal networks, and require employees to insert a disclaimer that their views are their own. Social media policies can also be used to notify employees that their online activity may be monitored.

Consistency is key
Following a policy ensures that issues are dealt with consistently. It lets employees know what is expected of them and makes it clear that disciplinary action will be taken if they do not comply. Any grievances brought by employees regarding social media should be taken seriously and be dealt with promptly.

Should a dispute arise, an employer is in a stronger position if it can point to a specific rule that has been breached and the reasonable steps taken to deal with it. The policy should be reviewed regularly to keep it up to date with changes in the law and in technology.

Ben Doherty
Partner and Head of Employment
Lindsays
bendoherty@lindsays.co.uk