Social media policies are not “stupid”. Here’s why.

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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.

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