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Monday, 10 August 2015

Member Blog: Social media and the law

Social media is here to stay, whether it be the instantly disappearing messages from Snapchat or the more detailed blogs of Tumblr. Most employers will recognise that most of their staff now have some form of social media presence. Understanding how social media should be used at work and what businesses may need to have in place to ensure employees are not breaching any contractual obligations is crucial. Zee Hussain, Partner and Head of Employment at Colemans-ctts provides guidance around this rather tricky subject.

Bad news travels fast 

While having a social media presence can be commercially beneficial to business, many employers will be aware of the risks associated with employees’ personal accounts given how fast (bad) news can travel. To what extent an employer can take action when an employee speaks out on their social media account is a burning question.

It is important to recognise that every case is different and before taking action, an employer must show that the post has a detrimental effect on the employers’ reputation or is in breach of the internal policies. Take the case of Game Retail Ltd v Laws where the employee had tweeted some offensive remarks from his personal account that could be seen by other GAME stores. GAME dismissed Mr Laws but he succeeded at the tribunal on the basis that the employer could not show that the tweets would even be read by any of the store’s customers.

Contrast this with the case of Preece v JD Wetherspoons where Mrs Preece had made a series of derogatory comments naming a customer on Facebook during work time. As the employer had clear policies in place, the Employment Tribunal dismissed her claim for unfair dismissal agreeing that dismissal was a reasonable response in the circumstances.

As case law around this area of employment law remains shady, to follow are some dos and don’ts of social media to assist you in staying safe.

Do:

- Have a policy which is clear and spells out what is acceptable conduct on social media and what is not and also provides specific examples. If you are going to monitor social media, then this should be made clear in any policy.
- Have a strategy in place. If employees are representing your business professionally (e.g. on LinkedIn) do ensure that their updates and profile is consistent with your brand message.
- Ensure employees are made aware that personal disputes involving colleagues should not be aired on social media.
- Take steps to protect your clients and any confidential information. Often ‘off the shelf’ restrictive covenants do not prevent employees from befriending clients on social media which can be lethal if an employee jumps ship. Therefore, it is advisable to regularly review your policies in light of social media to ensure they adequately protect your business.

Don’t:

- Leave it to chance. Not having a policy in place can mean that it becomes difficult to take action when things go wrong. The case of Game Retail Ltd v Laws says it all.
- Ban employees from having social media. Most people have some sort of social media account nowadays and it is part of everyday life.
- Share employee content. Regardless of any disclaimer, sharing employee content appears to be an approval and you may find your contacts following them.
- Overreact. If an employee remarks on Facebook that they have had a bad day, it does not automatically warrant disciplinary action and certainly may not warrant dismissal.

http://www.colemans-ctts.co.uk/ 

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