HR & Employment Law Insights

Helping family businesses, start-ups, charities, social enterprises, and other growing or established businesses throughout the UK make sense of HR and Employment Law challenges.

Facebook...Twitter...Instagram...social media has gone wild in recent years and has become a force which has pervaded every part of modern life.

As an employer, it's impossible to ignore its existence even if your company doesn't have an online presence. However, it is vital to ensure there is a distinct line drawn between acceptable use and overstepping the boundary, something which is becoming increasingly challenging.

We take a look at some of the issues which need to be thought about relating to employment law and social media and the measures you can put in place.

The impact

Social media utilisation in the workplace

The expansion of social media has meant that the boundaries between home life and work have become fuzzy, with employers being able to access more information than ever before about the personal lives of staff.

It can, therefore, be difficult for employers to know what information they can act on, and what is best ignored.

There is also the potential impact on the normal working day to be considered; some studies have estimated that as much as £14 billion is lost from the UK economy every year solely as a result of social networking.

Social networking isn't always a bad thing as it can improve communication between colleagues, enhance relationships and help to create more understanding between employer and employee.

The main issues

Despite the benefits social networking can bring, there are considerable issues which can arise which if left unchecked can lead to an almost untenable situation.

Some of the problems which need to be proactively addressed include:

  • Theft of time: employees spend too long during working hours updating and checking social media, or replying to personal messages.
  • Discussing confidential work situations in a public arena: whilst it's OK to vent if you've had a bad day, there have been numerous instances where employees have been caught naming and shaming, slating the company or disclosing details which weren't intended for the public.
  • Acceptable behaviour whilst off sick: the increased knowledge which is available means that an employer has far more information about the behaviour of an individual whilst they are 'off sick'. This might include photos or status updates about nights out when they were supposedly too ill to attend work.

These issues open up a real can of worms and raise challenging topics such as freedom of speech, invasion of privacy, defamation and cyber bullying. Because of the significance of these potential problems, it's essential to be well-prepared.

How to deal with social media challenges

The single most important solution that many firms fail to put in place from the start is to have a specific section in your employee handbook which covers the expectations and rules surrounding social media. By setting the rules out clearly, there can be no defence of misunderstanding what is permitted and as an employer; you will be on the much firmer ground if you have already stipulated the potential punishments for failing to adhere to the code of conduct.

It is important that an employer is seen to be reasonable, having a zero tolerance rule is likely to mean it is broken more often than it is kept, leaving you open to accusations of favouritism if you don't take action on every case.

However, your written policies should explain in clear terms which are not open to interpretation, exactly what is permissible in terms of both usages, and also the content which is being posted. It is a good idea to have an entire section dedicated to the type of information which will constitute a charge of misconduct if made public. This could include derogatory comments about the company or a fellow identifiable member of staff or sensitive data which is confidential. Like the rest of the code of conduct, this should be directly linked to the disciplinary procedures.

Make sure your bullying policy is updated to include cyber-bullying, and provide examples of what would be classified as gross misconduct.

Other steps

The ease of communication within social media can mean it is increasingly convenient to exchange messages without ever talking in person. This is particularly the case where individuals work remotely.

Misunderstandings or minor problems can often be nipped in the bud by face to face communications so it's a good idea to make sure this doesn't get overlooked in the new age of technology.

Monthly performance reviews are always a good measure to introduce, as it provides a regular opportunity for either party to raise any concerns or ask any questions.

If you plan on monitoring social media use, or internet activity in the workplace, it is highly recommended to engage with either the union or employee representatives before forging ahead. This may be seen as intrusive by many members of staff so you need to be clear about your exact motives and the benefits which will be gained by employing this strategy.

Legal factors

Although every company can draw up their own individual policies on social media use, there are some common principles which must be considered.

The Human Rights Act 1998 provides employees with the 'right to respect for private and family life, home and correspondence'. Although this is more applicable to public sector employers, it could equally apply to SMEs in some circumstances. Applying blanket rules which allow you to intrude into everyone's personal correspondence with no justification could see you falling foul of this legislation if challenged.

The Data Protection Act 1988 is one of the most important laws which must be strictly embedded into the philosophy of every company, but it applies equally to social media as it does to the use of paper documents. Included in the code of practice set out by the Information Commissioner is a section on the rules around monitoring, recording and retaining evidence of email communications.

Just in case you felt all legislation seemed to be empowering the employee and stripping the employer of all rights, the Regulation of Investigatory Powers redresses the balance somewhat. Although it provides the recipient with recourse if their communications are unjustly intercepted, it also sets out in what circumstances it is permissible for an employer to monitor usage of email or social media. Roughly speaking, the reasons include protection of the business, preventing crime, to comply with regulations, or where the sender or recipients have consented to the monitoring or interception.

Conclusion

This guide barely scratches the surface of what is a complex and rapidly evolving area of employment law. However by putting a policy in place, ensuring that all employees are made aware of what is acceptable – and the consequences for non-compliance – you stand a good chance of preventing social media from having a catastrophic effect on your business.