You can listen to Foxed? – our latest podcast on this topic here.

There has been a huge growth in the use of social media by individuals and businesses over the past few years. Social media platforms offer significant benefits for businesses, including sharing expertise, connecting with clients, building relationships with customers and promoting a positive image.

However, there are pitfalls to avoid and occasionally things can go seriously wrong. For example, an offensive message that is posted publically by an employee where a connection is made to an employer, can cause significant reputational harm to a business. There are also risks with the potential leakage of confidential information and tricky issues relating to monitoring social media platforms, particularly when a business is recruiting.

Employers should carefully consider what powers they have when there is social media misuse by an employee. In some circumstances, it will be appropriate to discipline or dismiss an employee. However, it is important for a business to remember that it should not have a “knee-jerk” reaction. Employees with at least two years’ service have unfair dismissal rights, so a fair process should be followed, including conducting a reasonable investigation into the alleged misconduct. An investigation into potential misconduct should consider if the post was for a specific work-related purpose or was made on a work account. It is also worth checking if work equipment was used to make the post as that can be relevant too. If the social media post was on a private account, then the content of the post needs to be considered in context. The courts have acknowledged that it may be difficult to work out if there is a connection between an activity carried out on a personal social media account and the individual’s employment so establishing a link with work is key.

A good starting point for risk management is having appropriate terms in the contract of employment that address social media risks, along with a bespoke social media policy coupled with guidelines and training on use of social media. The business should consider what kind of social media and business culture it would like to promote and what the policy should do. Most employers want to protect their reputation and relationships with clients, customers and third parties and they will want specific provisions that protect intellectual property and confidential information.

The business should make it clear that a breach of its policy, including breaches of other polices on social media, could warrant disciplinary action, including dismissal. This can help an employer take action with more confidence where one colleague has abused another online. A business may also wish to consider adding a provision to its policy that addresses the monitoring of the content of posts and online activity. However, it is important that businesses are mindful of the UK GDPR and equality laws.

There are a number of issues to navigate in this area but with proper preparations and planning, a business will be better placed to address any social media problems swiftly and with confidence.

If you are interested to learn more about the issues explored in this blog, please listen to our podcast for a discussion between Ivor Adair and Claire Plumb. Do get in touch with us at podcast@foxlawyers.com if you have any questions or thoughts about any issues related to social media misuse.

By Claire Plumb

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