Victoria Clark, associate in Clarion’s employment practice, gives advice how businesses can ensure that social media is not misused by employees.
1. Introduce a Social Media Policy
The centrepiece of your social media management toolkit should be a comprehensive policy setting out clear rules and expectations around the use of social media by employees.
Ensure that employees acknowledge receipt of the social media policy and confirm that they have read and understood it, in writing.
2. Conduct Social Media Training
Train your team on the content of your social media policy, emphasising what constitutes acceptable and unacceptable use of social media. Regular refresher training will also be beneficial.
Ensuring that employees have received up to date training will not only help to prevent issues from arising, but you will be better placed to take disciplinary action if something does go wrong.
3. Introduce Equality Training
As social media is difficult to control, the risk of employees uploading or sharing discriminatory content is high.
You can be vicariously liable for acts of discrimination carried out by your employees online where the act was ‘in the course of employment’. This has a wide meaning and may include any social media post where there is any visible association with the employer.
Your only defence would be to establish that you took ‘all reasonable steps’ to prevent the discrimination. Therefore, regular training on discrimination and equality will significantly reduce the chance of you being liable for employees’ online behaviour.
4. Get Management Support
Managers need to understand, support and enforce your social media policy. Train your managers and seek regular updates.
5. Monitor Social Media Use
Monitoring online activity is useful, but notoriously difficult. You can only monitor your employees where this is justified and proportionate, otherwise it will be unlawful.
Therefore, you must set out a clear written monitoring policy and ensure that employees have explicitly consented to being monitored.
Avoid creating bogus social media accounts to monitor employees’ activities. The Information Commissioner’s Office has issued a specific warning about this, as it may infringe employees’ right to privacy.
6. Take Disciplinary Action
Your social media policy will become meaningless and lose credibility if you do not consistently enforce it when you discover that your employees have behaved inappropriately online.
7. Define Company Property
During their employment, employees can develop a network of business contacts via social media. When an employee leaves, there is often confusion around the ownership of those contacts and this can leave the employer exposed to the risk of their contacts being solicited away.
To avoid any such risk, ensure that you identify social media contacts made during the course of employment as company property. The employment contract should be carefully drafted to ensure that the definition is enforceable.
8. Update Contracts of Employment
It is worth reviewing the termination provisions in your template contract of employment to include provisions which require social media contacts made during the course of an employee’s employment to be deleted or handed over on termination.
9. Use Social Media in Recruitment
Social media can be helpful when you’re recruiting as you can get a feel for the individual’s personality, but you should inform the candidate that you’re doing this and take care not to discriminate based on their social media profile. You can only reject candidates for objective reasons such as insufficient experience.
10. Avoid Online References
Don’t be tempted to use social media to track down former employers and colleagues of a job applicant – this could be an invasion of privacy. There is ongoing litigation in America around this which is likely to be persuasive on the UK courts.
If someone asks you to give a reference about a former employee online, don’t. You could find yourself liable for negligent misstatement or misrepresentation. Silence is golden.
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