Inappropriate use of social media by employees can carry dangers for any business, and the main risk is reputational damage
Social media has revolutionised the way in which people create and share content and communicate with each other over various forms of media. Communication over social media has become increasingly popular, and the use of social media by individuals in and outside of the workplace has become common.
How employees use social media in the course of their employment is particularly important for businesses. Under UK law, employers are vicariously liable for the acts carried out by their employees. Therefore, it is important that businesses have a well-thought-out social media policy to deal with employees using social media, including outside of office hours.
What are the dangers arising from using social media?
Inappropriate use of social media by employees can carry dangers for any business, and the main risk is reputational damage to the business. Other key dangers of social media use include:
- Potential liability where employees post defamatory or discriminatory work-related comments on social media
- Disclosure of confidential information, which may include commercially sensitive information belonging to the business
- Infringing third-party intellectual property rights.
To tackle the dangers of social media use, businesses often make use of social media policies as the first line of managing risks internally within the company. Below, key decisions arising from case law are explored, highlighting the importance of having a well-thought-out social media policy in place.
Panel: social media and the aesthetics sector
Social media in the sector is clearly on a number of agendas, and organisations in this area need to be especially careful.
In April 2019, a paper by Walker et al examined whether exposure to images depicting facial cosmetic enhancements increased the desire for cosmetic surgery among young women (Walker et al, 2019).
Several healthcare organisations have already tackled the problem. In the US, the Cleveland Clinic has a social media policy that runs into the detail for staff and patients alike (Cleveland Clinic, 2021). Furthermore, Surrey and Sussex Healthcare—an NHS Trust—has a policy that ‘covers all current and future social media platforms' (Surrey and Sussex Healthcare NHS Trust, 2018).
It is worth noting that, in 2011, the Advertising Standards Authority (ASA) had its remit extended to cover adverts placed in social media. A search of the ASA's website shows a number of adverts that were banned on Instagram for various breaches of the rules, including Smiles Powder UK Ltd, Queen of Aesthetics, Faces by AKJ Aesthetics Ltd and Beauty Boutique Aesthetics. The adverts on social media were banned.
Examples of social media policies
Crisp versus Apple Retail (UK) Ltd
The case of Crisp versus Apple Retail (UK) Ltd is a good example of how having a well-constructed policy can help a business tackle misuse of social media. In this case, Apple had made it clear in its policy and training materials that protecting its image was a ‘core value’ and had stated that making derogatory comments on social media would have serious consequences and likely to lead to dismissal (Croner-i, 2011). In this case, an employee, while at home, had posted several negative comments on Facebook concerning the company and its products. The employee was dismissed, and it was found that Apple's policy was clear on the consequences of misuse of social media (Croner-i, 2011).
Walters versus Asda stores
In contrast, the case of Walters versus Asda stores, the employment tribunal found that comments made by an Asda manager on Facebook, concerning imagined violence against customers, constituted misconduct (Sinclair, 2015). However, the comments were not enough to warrant dismissal. It is worthwhile noting that, in addition to factors such as how dismissal was carried out, the tribunal also paid particular attention to Asda's policy, as the employee's actions fell under the ‘misconduct’ category within the examples given in the policy, rather than examples that lead to dismissal (Sinclair, 2015). This case is significant as, while it is useful to have a policy, careful thought should be placed setting out the consequences of posting harmful comments on social media, particularly if the business wishes to include examples in the policy of the type of online behaviour that can lead to dismissal.
» … while having an appropriate social media policy in place is paramount, businesses should also take appropriate steps to communicate its social media policy to employees, implement appropriate training and take steps to monitor compliance «
Blue versus the Food Standards Agency
Similarly, the case of Blue versus the Food Standards Agency demonstrates the need to have a policy that clearly sets out how employees should use their personal social media accounts to participate in work-related conversations online. In this case, a hygiene inspector for the Food Standards Agency was dismissed after taking part in a Facebook conversation with two employees who had been dismissed from an abattoir he inspected (Adams, 2014). His contribution to the conversation was liking a comment about his manager being attacked with a chair. The Food Standards Agency claimed, among other things, that the employee's participation in the conversation had brought the agency into serious disrepute and dismissed the employee (Adams, 2014). The dismissal was found to be unfair for several reasons; however, as with the Walters case, it is interesting to note that one factor taken into the decision was the agency's policies. The policies set out several scenarios that allowed for disciplinary actions but, despite the serious nature of the examples provided, these still did not allow for dismissal. In comparison to the agency's policies, it seems that, along with other factors, the tribunal took the view that, for the level of contribution in the online conversation, compared with the examples of dismissal provided in its policies, the liking of a comment by the employee on Facebook did not amount to dismissal.
Preece versus Wetherspoons
In contrast to the findings in the previous two examples, the case of Preece versus Wetherspoons shows how having a clearly worded policy, which explains when the business may dismiss an employee, can be helpful when dealing with comments posted by employees online. Following an incident at work in which two customers were abusive to a pub manager, the pub manager made comments about the customers on Facebook while at work. The employee thought her privacy settings were restricted to only friends; however, the comments could be viewed more widely, including by family members of the customers in question (Mangan, 2018). Wetherspoons had a clearly worded policy that reserved the right to take disciplinary action, should the contents of any Facebook page ‘be found to lower the reputation of the organisation, staff or customers and/or contravene the company's equal opportunity policy’. Unlike the Walters and Blue cases, in this case, the employee's dismissal was found to be fair in these circumstances, as the policy was very clear on the consequences of inappropriate comments posted on social media.
The content of social media policies
As with the scenarios mentioned, the outcome depends on the facts of each case. However, the Employment Appeal Tribunal has set out a few guidelines for businesses to follow in social media cases. One of the guidelines highlights the importance of looking at whether the business has implemented a social media policy. As some of the examples above have illustrated, while it is useful to have a social media policy in place, the content of the social media policy is important when taking action and enforcing the policy.
» If employees are required to use social media for business use, such as Instagram posts, employers may wish to consider putting together guidelines setting out how employees can use social media for business use «
Clauses to include in a social media policy
A social media policy might include:
- Rules about accessing social media sites at work, particularly if personal use of social media is permitted during working hours
- Information about what monitoring may be undertaken by the employer of employees using social media in or outside of the workplace
- Outlining any prohibited use of social media, such as making derogatory or defamatory comments about colleagues, the business or clients; ensuring that employees are aware that they must not disclose any commercially sensitive confidential and proprietary information online; or doing anything to jeopardise any trade secrets or intellectual property rights belonging to the business or a third party
- A reminder that employees should not misuse other employees' personal data in online media
- If employees are required to use social media for business use, such as Instagram posts, employers may wish to consider putting together guidelines setting out how employees can use social media for business use. If business use of social media is permitted, employers may wish to include guidelines for employees to follow, such as inserting disclaimers explaining any opinions belong to the employee and do not represent the business
- The policy should clearly set out the consequences of breaching the policy.
In summary
When navigating an ever-changing landscape where employees' behaviour on social media platforms outside of work may have risks, businesses should seek to minimise these by implementing a social media policy tailored to the specific needs to each business.
It is important that a social media policy implements boundaries by clearly outlining what is considered to be acceptable behaviour on social media. The policy should be wide enough to cover personal use outside of work, the protection of confidential information to the business and intellectual property and should prohibit any defamatory and derogatory remarks. In addition to protecting reputation, businesses are often concerned about the misuse of social media using company equipment. To mitigate this risk, it is important that social media policies outline the appropriate use of company equipment.
Of course, while having an appropriate social media policy in place is paramount, businesses should also take appropriate steps to communicate its social media policy to employees, implement appropriate training and take steps to monitor compliance with it. The policy should be regularly reviewed to ensure that it meets the requirements of the business and caters to the ever-changing use of social media.