Social Media in the workplace – when it becomes unsociable

An employee of a retail business opened a Twitter account for personal use but in fact used the social media account for work purposes when he followed 100 of the employer’s stores and as a result, 65 stores followed him.  A colleague complained that the nature of the tweets was offensive, threatening and obscene.  The employer considered that, as the tweets were likely to be viewed by the public, this was an act of gross misconduct leading to summary dismissal.  At the Employment Tribunal it was decided the employee was unfairly dismissed as the comments were unrelated to work; no complaint had been received from the public; and there was no social media policy.  The employer appealed and the Employment Appeal Tribunal (EAT) found that the Tribunal had failed to consider that the comments could be viewed by the wider public; no attempt had been made by the employee to use Twitter privacy settings to restrict access to his comments; nor had he created a separate account for work and private purposes.  The EAT declined to give guidance on the use of social media as each case was likely to be unique.

If faced with concerns that an employee’s use of social media is potentially damaging to your company’s reputation, how should you respond?  Recent cases provide some important lessons on how to respond to social media concerns and ensure your decisions are fair and reasonable.

1) Have a Social Media policy which:

• Is a best fit for your business.
• Sets out clear guidelines outlining what is acceptable and unacceptable during work and personal time.
• Clearly outlines that personal use impacting upon the business and its reputation can be considered gross misconduct leading to summary dismissal.
• Cross reference with your disciplinary policy, equal opportunities policy and harassment policy to ensure a consistent message.

2) Encourage employees to use their Twitter privacy settings – they have a right to freedom of expression as long as their actions do not have a detrimental impact upon the business and its reputation.

3) Provide induction training and manager training on the Social Media policy, the consequences and possible action taken if misuse occurs.

4) Include a term in your contract of employment allowing you to monitor use of social media enabling you to enforce the policy.

5) When investigating the issue, ensure you have evidence of the comments made.  Determine if the comments posted have any connection to the workplace and what audience group could view them.

6) When deciding upon appropriate action to take consider the complaint received and whether it is from a colleague or the public.  Is the reputational risk to the business and/or customer relationships actual or theoretical?  Consider the seriousness of the nature of the comments made and whether instructing the employee to remove the relevant post is an appropriate informal response to the issue.

For assistance in drawing up social media policies and implementing best practice contact Anita Wynne at Beststart HR on awynne@beststarthr.com or Tel: 01438 747 747.