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Social Media at Work. Is the existence of a policy sufficient protection?

11th August 2016 by Ella Gould

Categories: What's New?
Tags: data protection, employee, employer, employment, social media

The ever increasing use of social media in the workplace has inevitably had a notable impact on most employers. Whether it’s an employee posting a controversial tweet, or sharing confidential information with their worldwide social media audience, employers have had to react quickly to this.

There is still no specific regulation of social media, leaving employers reliant on existing employment and data protection laws. The importance of developing internal social media policies has been pressed heavily by employment lawyers in recent years, but are these policies providing the protection employers expect?

Over use of social media

When it comes to excessive use of social media at work, in turn causing a loss of productivity, monitoring policies are a useful and efficient tool. Whilst monitoring cannot prevent other issues such as the publishing of harmful messages, it can certainly address, and also deter overuse in the workplace. As with any other employee monitoring however, employers need to comply with data protection laws and the employee’s right to privacy. Employees should be provided with clear guidance about what constitutes excessive use to ensure the policy is proportionate and enforceable.

Defamation

If an employee posts a negative comment on social media which the employer considers to have a damaging effect on the employer’s reputation, before taking disciplinary action the employer must focus on the actual impact on the business rather than an assumed impact. What is the seriousness of the damage? A relatively mild comment directed at colleagues is less likely to justify a fair dismissal than an offensive direct reference to the employer. The policy should clearly state what is considered to be derogatory but without being exhaustive.

Liability for employee comments

An employer may be liable for anything done by an employee during the course of their employment; regardless of their approval or knowledge. The ‘course of employment’ will usually include social gatherings or parties organised or attended by the employer. Issues of bullying or offensive comments to colleagues made via social media in certain circumstances may not therefore leave an employer free of liability.

Whilst the existence of a social media policy would assist an employer to defend a claim by showing it had taken reasonable steps to prevent the action, this is not always sufficient. Training on the policy and ensuring employees understand it is also essential.

Misuse of the internet and social media by staff continues to cost employers, and issues such as defamation, cyber bullying, privacy and data protection laws are unlikely to diminish anytime soon. Whilst basic social media policies provide employers with a degree of protection, many are at risk of being too vague for an employee to have understood what constitutes a breach, or too intrusive and therefore in breach of privacy and the Data Protection Act 1998.

It is now therefore clear that the existence of basic social media policies may still leave employers at risk of social media errors and misconduct, and fail to provide the protection employers were hoping for.

It is vital that social media policies not only exist, but that they are carefully drafted, tailored to the employer business and needs, and communicated to the employees effectively.

If you think you may benefit from expert advice or assistance, please contact Robin Watson on 01202 755980 or email r.watson@laceyssolicitors.co.uk.