Social Media – A Burden or a Benefit?

We have seen a marked increase in enquiries in relation toemployers` concerns in relation to things said by employees both inand out of working time on social networkingsites.

Whilst the opinion of many employers is divided, manyacknowledge the strategic importance of social media within theirbusiness and the many opportunities it can present. Others focussolely on the issues that it can create.

Whatever your view, the key is to ensure that any risks areidentified and managed accordingly. The potential risks are manyand could include discrimination issues, risks to the employer`sreputation, the risks that confidential information could be leakedonline, productivity and data protection issues.

The most frequent complaint from employers relates to thingsposted online by one employee about another and the risk of adiscrimination claim where the comments could amount to harassmentand where the employer could be held to be "vicariouslyliable".

Here, the employer`s first line of defence is to say that ithas taken all reasonably practicable steps to prevent theharassment. For this defence to succeed it will be necessary forthe employer to identify a social media policy and/or disciplinaryprocedure, clearly setting out that online conduct, even outside ofthe workplace, should be of an acceptablestandard.

Employment documentation should be reviewed to ensurerelevance in relation to social media usage. This should includerevised confidentiality provisions in the Terms and Conditions ofEmployment, up to date disciplinary rules and even a social mediapolicy to impose guidelines in the workplace setting outrestrictions on usage, monitoring by the employer and clearguidance in relation to the disclosure of confidential informationand the use of unacceptable and possibly discriminatory commentsabout both colleagues and clients at home and atwork.

Case highlight

In the case of Preece v J D Wetherspoons, an employee wasdeemed to have been fairly dismissed for making derogatory commentsabout customers on Facebook whilst at work. Here the employer had aclearly drafted policy which gave a clear warning that employeesmight be disciplined for making derogatory comments on Facebookabout customers, staff or the organisation.

In the more recent case of Whitham v Club 24 Ltd T/AVentura, Mrs Whitham employed by Club 24 (a Team Leader for Skoda,part of the Volkswagen Group) whilst at home and having had adifficult day at work, posted a comment on Facebook which hercolleagues and Facebook friends brought to the attention of herline manager. They believed that the comments could have adetrimental effect on the relationship between the Company andVolkswagen.

Mrs Whitham was then dismissed for misconduct on the basisthat her comments could have damaged the relationship between theRespondent and Volkswagen.

The Employment Tribunal concluded however, that Mrs Whithamhad been unfairly dismissed as the sanction, dismissal, for a "nottoo horrendous remark" in the words of the Manager who had heardthe appeal, fell outside the range of reasonableresponses.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.