Social networking presents modern challenges for employers. Here lawyer Gillian Mair gives legal advice on forming a social media and networking policy in your workplace.

The ever-growing popularity of the use of the internet as a way of keeping in touch with friends has led to the rapid rise of social networking sites such as Facebook, Twitter, Bebo, MySpace and Linkedin. Facebook currently has more than 350 million users and its contemporaries have equally staggering membership numbers.

Despite (or perhaps because of) their popularity, these social networking sites and the virtual channels of communication which they create pose challenges for employers. The temptation has never been greater for employees to log onto Facebook at work, check their profile and engage in some banter with colleagues or friends or to try to re-acquaint themselves with long-lost school friends.

Employers are continually challenged to keep on top of advances in the cyber world and to try to curb the temptation for employees to log onto social networking websites during working hours and therefore at their expense. Not only do social networking sites pose a threat to workplace productivity, but they also provide a platform for employees to share information about their employer with a worldwide audience, which could potentially bring an organisation into disrepute.

Newspapers recently reported hospital staff as having photographed each other lying down in unusual places around the hospital (including the hospital’s helipad) and then posting their pictures on Facebook as part of an internet ‘lying down game’. Thirteen Virgin Atlantic staff were also reportedly sacked because of comments they made on Facebook insulting customers and calling into question the safety of their employers’ planes and a marketing company was reported to have dismissed an employee for describing her job as ‘boring’ on the internet.

Another spin-off issue for employers arises where internet postings by one employee concern a fellow employee – the comments made could potentially be seen as discriminatory or amounting to bullying or harassment. Employers can, in some circumstances, be vicariously liable for the actions of their employees unless they can show that they took reasonably practicable steps to prevent an employee from carrying out such discriminatory conduct. With such a broad spectrum of discrimination legislation in force, there is a very real risk that “off the cuff” comments made by employees may deliberately or unintentionally cross the line.

These examples of inappropriate or unwise postings made by employees either during or outside working hours form a fraction of the behind-the-scenes antics on social networking sites potentially harmful to employers. This begs the question: what can be done by employers to combat these issues?

There are a few options open to employers looking to minimise the risk of reputational damage or discrimination claims. One is to ban social networking sites altogether at work and block access to these sites. While this may not be practical for every organisation and requires regular reviews to encapsulate new sites that become available, it certainly reduces the risk of employees wasting time on these sites during working hours.

A simpler measure may be to either introduce or update existing IT and internet policies. It is important to ensure that such policies are as robust as possible. Taking disciplinary action against employees without warning or without having a comprehensive IT and internet policy in place could lead to disputes, potentially unfair dismissal findings and/or costly payouts.

Policies should be carefully crafted to cover those sites which should not be accessed at work or to clarify when these sites can and cannot be accessed. Staff should also be aware that if they post a comment on the internet at any time, they should do so in a manner which is consistent with their terms and conditions of employment and in such a way that it does not adversely affect an employer’s reputation.

It is also essential that IT and internet policies clearly state that any breaches of the policy constitute a disciplinary offence and in serious cases may be treated as gross misconduct leading to summary dismissal. Policies should also be signed by staff to say that they have read and understood the terms.

While IT and internet policies can give employees guidance on an employer’s expectations in respect of internet use and clearly set out the boundaries, it is also important that employers are in a position to tackle any issues around time wasting. Contracts of employment should clearly state that employees must devote the whole of their time, attention and abilities to the business of the employer during working hours and disciplinary policies should state that a material breach of an employee’s terms and conditions of employment will constitute gross misconduct – so that any issues in respect of time-wasting can be addressed.

The facts of every case will vary – but in order to manage the risks posed by cyberspace, employers are advised to start taking simple steps, such as those suggested here, to ensure that those risks are successfully minimised.
 

Gillian Mair, Senior Solicitor, Brodies LLP