The use of social media by employees and how social media policies have been used by companies

Social media has revolutionised the way people communicate. With people increasingly creating and
sharing content online, the nature of that communication has changed too. As people use social media
both inside and outside of the workplace, this can present a unique set of challenges for employers.

Under UK law, employers are vicariously liable for the acts carried out by their employees, and this includes social media use. Therefore, the way in which employees use social media carries risk for any business.

What are the dangers of social media use?

  •  Reputational damage
  • Employees posting defamatory or discriminatory work-related comments for which their employer is potentially liable
  • The disclosure of confidential information, which could include commercially sensitive information belonging to the business
  • Infringement of third-party intellectual property rights.

Social media policies are important in mitigating against the dangers of social media use and some high-profile cases give useful insight into the importance of ensuring your social media policy is well
thought through.

Crisp v Apple Retail (UK) Ltd
This case concerned an employee who posted negative comments about Apple and its products on Facebook and as a result the employee, Mr Crisp, was dismissed. Mr Crisp bought a claim for
unfair dismissal. However, Apple had made it clear in its policy and training materials that protecting its image was a ‘core value’, also stating that making derogatory comments on social media would have
serious consequences and could lead to dismissal. With the tribunal finding that Apple’s policy was clear on the consequences of social media misuse, Mr Crisp’s claim was unsuccessful.

Walters v Asda Stores
In contrast to the Apple case, a separate employment tribunal found that an Asda employee posting that she’d be ‘happy to hit customers on the back of the head with a pick-axe’ did not amount to gross
misconduct and did not justify dismissal.

This case highlights the importance of clearly setting out the consequences of posting harmful comments in a social media policy, especially those types of behaviours for which an employee could
be dismissed.

Blue v Food Standards Agency
In a similar case to Walters v Asda Stores, this case concerns an employee who was dismissed for ‘liking’ a comment about his manager being attacked with a chair. Amongst other things, the Food
Standards Agency (FSA) argued that this brought the FSA into serious disrepute. An employment tribunal found the employee’s dismissal to be unfair for several reasons, though one factor taken into
consideration was the FSA’s policies which set out several scenarios which allowed for disciplinary action, yet none of these scenarios allowed for dismissal.

Preece v Wetherspoons
Here, a pub manager, who had been on the receiving end of verbally abusive comments from customers, later made comments about those customers on Facebook. Wetherspoons had a clearly worded policy which 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.” Having a policy that was clear on the
consequences of inappropriate comments posted on social media meant that the Wetherspoon’s dismissal of the pub manager was found to be fair.

Of course, the outcome of any case depends on the facts, though as the cases above show, it is paramount to have a well thought through social media policy in place as the content of that policy is important if you have to take action and enforce those policies.

What type of clauses should be included in a social media policy?

  •  Rules about accessing social media sites whilst at work
  • Information about any monitoring of employees’ use of social media in or outside the workplace
  • Outlining any prohibited use of social media such as; derogatory or defamatory comments about colleagues, the business or clients, disclosing commercially sensitive confidential and proprietary information,not doing anything that could jeopardise trade secrets or intellectual property rights belonging to the business or a third party, misuse of other employees’ personal data
  • Guidelines for employees required to use social media for business use
  • The consequences of breaching social media policy should be clearly set out.

Navigating an ever-changing landscape where employees use of social media outside of work can give rise to risks, it is sensible to implement a social media policy tailored to the specific needs of your business.

A policy should clearly state what is considered acceptable, should be wide enough to cover personal use outside of the workplace, the protection of confidential information and intellectual property, and
any defamatory or derogatory remarks. Policies should also be clear on the use of social media when using company equipment.

Businesses should also take steps to communicate that policy, implement appropriate training, monitor compliance and review the policy regularly to ensure it meets the requirements of the business
as well as the fast-changing social media landscape.