Employees and social media: possibilities and pitfalls

Social media is huge.  By the end of 2011, 37.4 million UK adults were using Facebook regularly, 32.1 million were using YouTube, 15.5 million had Twitter accounts, 7.9 million had LinkedIn accounts and 6.7 million had Flickr accounts.  And that's just the adults.

But social media services and traditional businesses have an uneasy relationship.  One the one hand, social media sites can consume a huge amount of employee time and present novel risks; on the other hand, they offer valuable marketing and business development opportunities.

The risks of employee social media use were highlighted recently in Teggert v Teletech.  The Northern Ireland Industrial Tribunal held that it was fair for an employee to have been dismissed on the grounds of gross misconduct following the posting of obscene comments on Facebook.  In similar cases, a key question will be the seriousness of the comments.

In this post, I take the employer's perspective, looking at both the advantages and disadvantages of social media services.

Advantage 1: marketing and business development

Some social media sites are more business-oriented than others.  LinkedIn, for example, is a pure business site.  However, used properly, almost any social network can benefit a business.

These sites can result in finding business connections, assisting with business networking, helping to create your company’s brand image, giving your company an online reputation, receiving customer feedback, analysing competition, generating leads and showing that your business is au fait with internet technology.

Advantage 2: employee happiness

Employees like using social media, and some will see a prohibition on social media use as an unwarranted interference with their personal lives.   A permissive social media policy may lead to happier employees. Those businesses that have historically allowed employees to use workplace telephones for social calls may see social media as an extension of that policy.

Disadvantage 1: employer liability

An employer may be vicariously liable for the discriminatory acts of its employee towards another.  For example, if an employee used Facebook to harass another employee, that could lead ultimately to a legal claim.

Similarly, there are circumstances where employees postings could give rise to liability on the part of the employer for intellectual property rights infringement, defamation or breach of confidence or breach of data protection legislation.

Disadvantage 2: confidential information, contacts and account control

Outgoing employees may be in a position to take confidential information and business contacts from social media accounts.  There are also cases of individuals taking social media accounts away with them, accounts that had been built up on employer time, and using them in new business ventures.

Disadvantage 3: reputational damage

In addition to the potential legal liabilities mentioned above, social media misuse by employees could lead to reputational damage to your business.

Disadvantage 4: discrimination in recruitment

There are circumstances where the use of social media during a recruitment process could lead to claims of discrimination, for instance if it enables the recruiter to access information about age or disability.

Protecting your business against social media risks

There are many steps that you could take to prevent the misuse of social media sites and make their use wholly beneficial to your business.  Important protections may include:

  1. Check your employment contracts – if there is not a clause prohibiting or restricting the use of social media sites, then now is the time to put one in.
  2. Include a social media policy in your employee handbook, setting out acceptable behaviour and usage regarding social media sites, both in and out of work.
  3. If using a social media site to assist in recruiting employees, ensure that you consider the Data Protection Act and do not unlawfully discriminate.
  4. Remember to be cautious if dismissing an employee for unfair dismissal based on the misuse of social media sites.  While the Teggert case found in favour of the employer, another case (Whitham v Club 24 Ltd t/a Ventura) held derogatory comments posted on Facebook were relatively minor, and did not justify a dismissal.

Let us know if you've experienced any problems with social media use in your businesses.  What was the nature of the problem?  Did the problem lead to any formal procedures or legal proceedings?   How was the problem ultimately resolved?

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