Social media has provided a wealth of case law in recent years, highlighting the need for employers to have robust Social Media Policies in place so that they may tackle damaging behaviour from employees online.
Unless employees are provided with a clear and comprehensive policy on social media use during their employment, the boundary between acceptable behaviour and damaging conduct can become blurred.
A landmark European case decided earlier this year, held that an employer was permitted to monitor an employee’s email account during working time. This case did not, however, give employers the green light to snoop on employees’ personal emails as Tribunals will still have to consider whether an employee has a ‘reasonable expectation of privacy’ and whether the employer has complied with the Data Protection Act 1998. In this particular case, it was relevant that the employee had claimed that all of his emails were work-related and that the employer’s policy on private email use was very clear and understood by the employee.
The UK courts also held last year that an employee who wrote derogatory comments about his employer on his personal Facebook page could rightly be dismissed without notice for gross misconduct. The fact that the employee posted regularly about grievances he had with the employer was sufficient to amount to gross misconduct, even though he believed these postings to be private and separate from his work. However, every case is decided on its individual facts and without a robust Social Media Policy it becomes very difficult for an employer to take action against an employee who damages their reputation online. It is essential that Social Media Policies make clear the standard of behaviour expected from employees when they are operating under an online presence.
The policy should make it clear when private use is allowed in working time and what is expected for business use. Further, the policy should indicate that use will be monitored to ensure boundaries are being kept to in respect of time wasting or inappropriate content.
A Social Media Policy can also be used to warn employees that social media activity (both inside and outside the workplace) is not necessarily private and that the employer can discipline employees for conduct that breaches its policies in the social media arena, just as in other arenas such as via email or in face to face meetings. Online conduct harmful to the employer, its staff, customers or business can amount to misconduct, or in some cases gross misconduct.
Ultimately employees must be aware that once something is posted online it is near impossible to remove. Employers must be alive to this and provide an up to date and comprehensive Social Media Policy incorporated into the employee handbook or as a stand-alone document. To prevent these often uncomfortable disputes, all parties must know the point at which social media use changes from personal to professional.
For further information or advice on the issues raised in this article, please contact Sarah Hall, Partner in our Employment team.
Call: 0191 232 8345