Employees’ use of social media is a hot topic in HR. It’s something that employers have not traditionally needed to deal with and, as it’s a relatively new area, everyone’s got a view on what employers should and shouldn’t do. Including me, hence this blog. Yesterday this blog caught my eye. It’s by Doug Shaw, and summarises a talk by Neil Morrison and Matthew Hanwell at the currently underway 2011 CIPD conference about social media entitled “HR, Harnessing the Power of Social Media”. Neil’s website doesn’t at the time of writing contain full details of his talk, but instead refers to Doug’s blog, so that’s what I’m working from, and from which the quotes below are taken. I’ll say now that if I’ve misconstrued any element of Neil’s talk then my apologies, and I’ll be happy to amend this blog as appropriate.
As a former employment lawyer, I want to make a few comments on the legal issues on the subject, with reference to some of Neil’s observations in his talk (as set out in Doug’s blog). None of what follows is any sort of attack on Neil, whose talk merely catalysed me into writing something I have been planning on anyway, and some of whose points I entirely agree with. But I think it’s important that employers and HR professionals realise that the issues that can arise from employees’ use of social media aren’t like those wooly, non-legal HR areas where it doesn’t really matter (legally speaking) what you do. On the contrary, they can have serious business and legal consequences for employers.
Neil suggests that employers don’t need a social media policy (“ever seen an acceptable newspaper use policy? No - so why do you need one for social media?”). He goes on to say that the employer’s “first job as sheriff is to make sure HR don’t write a stupid policy on social media”. The sheriff’s second job, he says, is to make sure IT don’t write an “even stupider social media policy”.
The reason that employers have policies on various employment-related matters is to set down (preferably) clear rules about how an employer and its employees should deal with certain matters. In the context of certain policies (such as disciplinary rules), this provides certainty as to what employees should do, and how the employer will deal with things if they don’t.
No-one sensible would disagree that it’s a good idea for employers to have, for example, an IT or a disciplinary policy - so what’s different about social media?
There is no doubt that an employee’s use of social media can create legal problems for his or her employer. The employee could, for example, post something publicly that is derogatory about the employer. The employee could post confidential information about the employer. The employee could be offensive about one of the employer’s business partners. Sure, at one end of the spectrum, such postings could be “bad day” messages (as Doug puts it), and it would often - as Neil suggests - be a bad (and potentially costly) mistake to sack someone for that sort of message.
However, at the other end of the spectrum, an employee’s questionable use of social media could have very serious consequences for the employer, which might (for example) lose business as a result. That probably won’t happen in the majority of cases, but it’s clearly a risk. Dodgy comments on social media could also create internal problems at the workplace, such as where one employee posts something offensive about a colleague.
So, sometimes, an employee’s use of social media in connection with his or her employment will be a disciplinary matter, and the employer will need to do something about it. Having a social media policy will help the employer do that, by setting out what employees are and (more importantly) are not permitted to say on social media in connection with the employer. The employer’s disciplinary policy should tie-in with the social media policy.
Neil asks, “can you control what goes on with social media? No more than you can control what people think and say, so don’t try to”. I agree with Neil that an employer cannot ultimately control what an employee does or does not do. If an employee really wants to post an offensive employment-related Facebook message, then he will. But that’s not the point here. You can’t control whether or not an employee will use power tools unsafely at work, but that’s not to say you shouldn’t have a health and safety policy. It doesn’t mean that employers shouldn’t lay down rules regarding this sort of social media use.
The point of a well-drafted social media policy is that, by setting out expectations of employee’s behaviour in this regard - and by warning what may happen if those expectations are not met - the employee has a manifest disincentive to post such a Facebook comment (or tweet, etc); and the employer has grounds for taking action against the employee. See our free tribunal case report on Stephens v Halfords plc ET/1700796/10 for an example of an employee taking down an Facebook page criticising his employer after he discovered his employer’s policy on such matters. (He was dismissed anyway, but my point is that the policy was effective to limit the potential damage caused by the page.)
Obviously, some types of social media use by employees can warrant dismissal, and that dismissal can be perfectly fair: for a good example see our tribunal report on Preece v JD Wetherspoons plc ET/2104806/10, which involved a pub shift manager dismissed for making abusive Facebook comments. The employee, Miss Preece, had suffered some unpleasant abuse from customers. Despite that, her employer deemed her Facebook comments about those customers to be unacceptable, and the tribunal held that the dismissal was fair.
However, tribunals do not look favourably on employers who sack employees without warning them in the first place that what they ended up doing might result in dismissal. To illustrate that point, here’s another tribunal report: Lerwill v Aston Villa Football Club Ltd ET/1304758/10. This case involved a football historian who was unfairly dismissed by Aston Villa for comments that he had made on an internet message board. In upholding Mr Lerwill’s claim, the tribunal stated that he had been given no indication of the severity with which the club would view his actions; “nor was there any guidance for him in any policy or procedure or his contract that would put him on notice that comments on a public message board could result in disciplinary proceedings and dismissal”. Mr Lerwill was unaware of the strength of the club’s views about his behaviour - if it had had a clear social media policy, perhaps he would have been.
For an example of why employers should take care when drafting social media policies, see our report on Whitham v Club 24 Ltd t/a Ventura ET/1810462/10. In this case, Mrs Whitham, commented on Facebook that she worked “in a nursery” and was unfairly dismissed as a result. One of the employer’s many mistakes was to dismiss the employee for a breach of its policy, which prohibited the posting of confidential information on social media including Facebook. However, the tribunal held that she hadn’t actually breached the policy, because she hadn’t posted anything confidential: she’d just had a bit of a moan about her colleagues at work.
So no - don’t write a “stupid” social media policy. But do have a clearly-written and comprehensive social media policy, because it will not only help to prevent legal issues arising in the first place, but also enable you to take action against employees when they overstep the mark that you have deemed appropriate for your business. This isn’t just me saying this - recently, Acas published a guide to social networking issues that can arise in connection with employment, which (SHOCK) advises employers to draw up a social media policy, and suggests how to go about doing so - this section of the guide is particularly worth reading. Tribunal cases on social media issues are becoming more frequent, and employers should deal with the issue proactively, rather than making things up as they go along when an employee eventually ends up posting something damaging or offensive.
For more information on the legal issues surrounding employee’s use of social media, have a look at the following FAQs on XpertHR:
- What can an employer do if an employee posts a derogatory comment about it on a social networking site?; and
- What can an employer do if a former employee posts a derogatory comment about it on a social networking site?
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John,
Thanks for mentioning the conference session and for your points. I certainly don't take this as personally critical in any way.
I made the point in the session (which you can't be expected to know) that whilst we don't have a social media policy, we do brief employees on the potential legal implications of comments made on social media. We need to differentiate between the moans and groans and the serious issues (such as breaches of DPA, racist content etc.) My point was that the latter are serious but small in number, whilst the former are probably larger in number but really aren't that serious.
But I think you've also drunk the kool aid a little on this one (along with ACAS). Can I ask you whether you would suggest that organisations have a written communication policy detailing what you can and can't say in letters? Or an email policy saying what you can and can't say in emails? Or how about a telephone policy based on what you can and can't say on phonecalls?
Of course the idea would be laughable. So why is there a difference with social media? Because it is new.
My point yesterday was that you are better educating than legislating. I'm afraid that if you let the lawyers lead the way on writing policies you might as well kiss goodbye to any corporate culture you have - and any sense of fun or enjoyment in life. If you want to cover every eventuality off in a policy, you will end up with exactly what I said, "a stupid policy".
I'm a great believer in treating people like adults. Of course there are boundaries and of course we have to communicate the need to act responsibly. But how you do that is critical, and that was my real point.
Thanks again, it is a good debate to be had.
Neil
Thanks for your comment Neil – much appreciated. It’s interesting to get a different perspective; some observations on your reply below.
General “moans and groans” are one thing, but surely you’d agree that an employee could cause serious problems for a company by using social media inappropriately, for example by posting confidential information? Granted, that’s not going to happen very often – just like discrimination in a particular workplace probably doesn’t happen often (as you suggest) – but if it does (and sooner or later there’ll be a legal case in which precisely that has happened), then the employer will be in a much better position to deal with the matter if it has set out clear rules on what’s expected of employees and drawn them to the employees’ attention.
You suggest that it would be “laughable” to have written policies dealing with what employees “can and can’t say” in letters, emails and phone calls. On the contrary, it is perfectly normal for employers, whose employees use email and the phone as part of their jobs, to have such policies. As I’m sure you must realise, in practice these policies don’t say prescribe precisely the words that employees may/may not use (policies shouldn’t “cover off every eventuality” – that would, as you say, be stupid!), but they do – like all policies of this sort – lay down general rules that employees should abide by, warning them of what happens if not.
So, an IT policy will typically state that employees should not send emails that are defamatory, obscene or otherwise inappropriate; emails that criticise competitors or customers; or include confidential information where it is not appropriate to do so. Similarly, employees whose roles include a lot of telephone work – such as telesales staff – will normally have rules about their conduct on the phone. This is all completely normal and standard. Letters are a slightly different story – they don’t normally have their own policy as such – but it’s very common for an employer’s policies to state, somewhere, that employees must ensure that they act appropriately when sending written communications on their employer’s behalf, in the course of their employment.
Of course, these sorts of policies usually relate to emails and phone calls made in the course of employment – and not, for example, a phone call from an employee to a friend at the weekend moaning about his job. But they are not “public” in the same way as social media, which is a key difference. If an employee went on TV in his spare time and disparaged his employer, the employer may well be entitled to take action.
You say that social media is “different” because it is new. That’s right – and that’s why employers have policies regarding use of email and telephones, as I’ve described above. It’s no coincidence that letters, which have been around several thousand years longer than emails and telephones, don’t often have their own policy – partly because employees generally have a good understanding of what they should and shouldn’t put in a letter. New technologies and tools present new potential problems, and social media in particular can blur the line between professional and private life. Another important distinction is that letters lack the immediacy of emails, phone calls, and use of social media.
An employer can’t reasonably expect employees to merely act appropriately without guidance. If it could, then employers wouldn’t need – for example – an equal opportunities policy stating that employees shouldn’t harass colleagues. Fortunately, it’s obvious to most employees that they shouldn’t harass people at work, but employers need a policy prohibiting it all the same, in order to educate those employees who aren’t aware of how to behave, and to rely on when taking action against an employee who commits harassment.
Similarly, it’s prudent for an employer to give employees general rules about their expected behaviour on social media in connection with the employer. This doesn’t mean not treating people like adults. In your workplace, employees may be very social media-savvy, and have a good idea of how to use it appropriately in connection with their workplace. They might not need a policy in order to act appropriately – although you indicate that they’ve been given an idea of this, albeit not in a written policy. But not all workplaces are like yours, and in any event, what is an acceptable use of social media for one employer will be different from the next.
I’m not saying that lawyers should lead the way on writing all of an employer’s policies. But I’d guess you’d probably agree that they are the best-positioned to get the legal aspects right. Contrary to your suggestion, that doesn’t mean an employer losing its corporate culture, nor does it mean losing “any sense of fun or enjoyment in life”. Let’s remember that we’re talking about businesses here – for the most part, employers that exist to make money. A sensible employer will take appropriate steps to reduce the risk of damage to its businesses, and the risk of successful unfair dismissal claims.
Thanks again for your reply (and anyone else's views on this subject are very welcome!).
John.
I think you're probably both on the same hymn sheet, but approaching from different angles. As someone who's had to manage a large team of headstrong people, I can put my hand on my heart and say that having policies and sitting with staff and discussing them is one of the best things I've ever done.
If 'stupid mistakes' weren't easy to make, no-one would make them, and talking through the legal AND moral effects of actions stops people causing harm unthinkingly, protecting them and their work colleagues.
On more than one occasion, having a written policy that I could refer back to allowed me to diffuse a situation quickly and efficiently with a raised eyebrow and reminder of the policy - without it, we could easily have been talking disciplinary actions and the misery that goes with serious reprimands.
Policies are a useful tool, protecting staff as well as companies: used well. they're a clear statement of expectation of high standards that make people proud to work somewhere.
Hi John - thanks for referencing my blog. I left a reply last night which was apparently held for approval. I'm having another go as it hasn't yet appeared.
I simply wanted to share what strikes me as an adult to adult way of looking at social media guidelines. IBM co-created theirs a while back and they seem simple and straightforward. Here's the link in case you and others want to take a look.
http://www.ibm.com/blogs/zz/en/guidelines.html
Cheers - Doug
Claire - thanks for your comment. To use Neil's terminology, I don't think employers should "legislate" without "educating" employees: the two need to go hand-in-hand. In an ideal world, employees would always know exactly what's expected of them and behave perfectly all the time - but that's simply not reality.
Doug, thanks for your reply - not sure what happened to the first one! The IBM policy is exactly the sort of thing that I think prudent employers should implement. And if a company like IBM - whose employers are hardly unfamiliar with IT issues - sees fit to put such a policy in place, then (I would venture) it's even more important for employers whose employees may be less clued-up on such matters to set down some rules.
I forgot to mention - the IBM guidelines were created by IBM staff, critically important in this debate methinks
It's interesting to see some debate around this topic.
Unfortunately, education doesn't work for everyone. While it would be great if all employees at all organisations in all sectors could be empowered and trusted to manage their own use of social media, it simply is not the case.
Empowering employees to manage their own social media use assumes a level of media literacy on their part, and that assumption is not always a safe one.
In Neil's organisation, a briefing is sufficient to give employees the knowledge they need to manage their social media activity. But that isn't necessarily the case across all employers.
A policy - or a set of guidelines, or a framework, whatever you want to call it - need not be prescriptive and prohibitive; it simply offers all parties a set of parameters in which they know they can operate when using social media. Indeed, it could be argued that without these parameters, many employees will not touch social media with a bargepole, as they don't know where they stand at all and are fearful of doing the wrong thing.
And, of course, I don't think anybody is suggesting that a policy is a substitute for education - the two should always go hand in hand. In fact, these two aspects could be combined by involving employees when drafting your social media policy, so the process becomes collaborative and consultative, and isn't something that feels forced on your employees from on high.
Crucially, in the absence of a policy, an employer will find it more difficult to effectively address an episode of social media use which is damaging or harmful. A policy enables the employer to demonstrate why they are taking action against an employee who has acted in a damaging way - by being able to refer to the guidelines that are in place.
Without a policy, the employer leaves themselves open to accusations of unfair dismissal, since the employee can claim they were never made fully aware of what they were expected to do (and not do).
So, as well as enabling the empowerment of employees, a policy covers employers' backs - and rightly or wrongly, this is the reason most employers will want to put a policy in place.
And one final point - to compare social media with letters, emails and phone calls is a bit of a stretch. For a start, emails are typically covered by an employer's internet and computer use policy. These policies might not always prevent people from making fools of themselves (see the many instances of email buffoonery that have backfired on employees and brands), but they are in place nonetheless.
Also, letters and phone calls do not have the same potential as social media to cause long-lasting, broadcast brand damage. Once written, a tweet or a wall post can be around the world in seconds - leaving a digital footprint that can be impossible to erase. An ill-considered social media activity can cause far more harm than a bit of old media – this deserves to be reflected in how employers handle it.
Thanks for your second (third?!) comment Doug. That is an important point. I certainly think that employers should - as a best practice approach - obtain employees' views when drafting up these sorts of policies. For example, Acas encourages employers to consult with employees when creating disciplinary policies.
There seem to be two obvious untruths being promoted here: first that it is in some way not treating people as adults to communicate a clear policy on something and secondly that by educating people you can always prevent them behaving in ways that are damaging to your business.
It is perfectly coherent with being "adult" to have a written policy advising staff of what you expect of them. It's no less adult than telling them in conversation, which has been suggested as being somehow more "adult".
As for education over a clear policy; does anybody really believe that by educating employees as to what is expected of them all unwanted behaviour can be eradicated? It's a facile idea that doesn't warrant much discussion.
Clearly education can help, but any large and prudent employer gives its employees and itself clear, written policies on which it can base its reactions to employee behaviour. It helps both parties.
If adults who knew better always reacted responsibly I wouldn't have a hangover today.