Over the past two decades, social media has dramatically changed the way we communicate. With the number of monthly Facebook users reaching 2 billion, the way that social media impacts our lives will continue to grow.
For many businesses, social media has been an extremely positive force; allowing them to streamline internal communications, engage with potential clients online and show the human side of their organisation.
However, without the right social media policy in place, it can cause big problems for employers.
As well as the increased risk of reputational damage that comes with social media, organisations can be left liable for the conduct of their employees that constitutes things like harassment, discrimination and bullying.
Vicarious liability refers to a situation where an employer can be held responsible for the actions of their employees.
In the context of social media use, this means that an employer could be held vicariously liable for any abusive or discriminatory posts made by their employees during the course of employment.
For example, in the case of Otomewo v Carphone Warehouse Ltd, the employer was found vicariously liable for an offensive status update posted by two employees.
The actions took place during work hours and involved dealings between staff members.
The content of the message left Carphone Warehouse liable for conduct that amounted to harassment on the grounds of sexual orientation. Whilst policing everything your employees post on social media is understandably impossible, a social media policy can help to minimise the risk of misuse.
Taking disciplinary action can often be tricky for employers, and taking it for misuse of social media is no exception.
In the case of Smith v Trafford Housing, an employee was demoted after expressing critical views of same sex marriage.
Whilst many may have found the employee’s comments offensive and homophobic, the employment tribunal ruled that the demotion was unfair as it did not bring the employer into disrepute.
Protecting your Business
In some situations, an employer may feel as though an instance of social media misuse leaves them with no alternative but to dismiss the employee.
However, without ensuring a clear social media policy is in place and that the correct procedures are followed, businesses could face costly employment tribunal claims for unfair dismissal.
In Hayward v Noel Chadwick Limited, Haywood, an employee of seven and a half years, was dismissed after sharing a discount for an online meat retailer on Facebook.
The employer saw this as advertising for a competitor and dismissed Haywood for gross misconduct.
Haywood’s claim for unfair dismissal was allowed by an employment tribunal who ruled that the employee’s misdemeanor was ‘minor’ and the claimant was dismissed in a process that was ‘reprehensible’.
Haywood was awarded a payout of £6,091 in lost wages, compensation and legal fees.
However, with awards for unfair dismissal as high as £470,865 in 2015/16, making a dismissal without specialist advice can have severe consequences for businesses.
Speaking about the risks that social media misuse can pose, Dippalli Naik, an Employment Solicitor at Wildings Solicitors said, ‘Social media misconduct can take many forms. With the threat of costly employment tribunals for businesses who mishandle it, knowing what action a business can take against an employee is essential.
Enlisting the help of a specialist is the best way to ensure a proper procedure is followed’.
Below are some of the steps that businesses can take to protect themselves from the risks posed by social media:
- Make it clear what employees can and cannot do within and outside of the workplace in a social media policy. The policy should be regularly updated and should clearly define what conduct is and isn’t acceptable and the disciplinary action that can be taken in the event of a breach
- Provide managers with training on the social media policies. Managers will then be prepared to train and educate employees and ensure they are aware of the rules
- Monitor the use of social media and enforce a social media policy
- Have a plan in place to deal with emergencies
Having help from a specialist when drafting and implementing a social media policy can make all the difference.
At Wildings Solicitors, our Employment team are specialists in supporting businesses with employment law and HR issues.
Contact our team on 0330 333 8797 for expert support and advice today.