Since 2004 when Facebook and 2006 when Twitter first began their operations in the United States, Social Networking and Social Media usage has increased exponentially, with the average user now spending five and a half hours every month on these type of sites.
 
With the introduction of a huge range of affordable smart phones and internet access through mobile telephones, an employee is only a few clicks from a whole range of social networking sites. Users can tweet, blog or post about events occurring in their life including things which they consider to be good, bad, and provides a space where individuals can articulate how they feel about others around them or the situation in which they are positioned.

Given that for most full time employees, at least a third of their waking day is spent in work, it seems inevitable that these two forums are to likely to collide and opinions regarding an employee's time in work can easily seep into thoughts and comments which are registered on social networking sites. Aside from the obvious potential reduction in productivity in staff through use of these sites during the working day, such comments, posts, blogs or tweets can leave employers and employees exposed to potential claims for defamation, libel or workplace bullying and harassment, often without the knowledge of the employer.

However, that being said this whole area of social media is not necessarily entirely negative, with sites such as LinkedIn and 123 people seeking to connect and develop networks of contacts within the world of work leading to new opportunities for business and development and there may be therefore occasions when legitimate use might properly be required.

 
How can employers protect your business?It should be as easy as A,B,C

It is the case that most employers will have in place an Internet and/or email usage policy within their company handbook, however in this ever changing online sphere of communication it is necessary for employers to review their existing policies and procedures to ensure that those remain fit for purpose.
 
We would recommend that in order to ensure you are protecting your business appropriately employers need to have an Awareness of the issues in relation to this area and the potential pitfalls as touched on above. Employers and employees need to be aware that statements or comments which are made online are to be treated in the same way as if it had occurred in the work place and that individuals can be held responsible for comments attributed to them.
 
The Behaviour which is expected of all members of staff should appear in a Company Social Networking Policy with a very clear policy on what is considered acceptable use. This policy should clearly address items such as:

• Acceptable levels of use of social media whilst in work, either while on company computers or on personal devices;
  
• Acceptable and unacceptable references which may appear online; including references to the employer or other employees;
  
• Transparency and Disclaimers;
  
• Monitoring practices and enforcement of the policy;
  
• Reference to existing company anti-bullying and harassment policies;
  
• Sanctions for breach of the policy, linked to Disciplinary procedures; and
  
• Matters regarding Freedom of speech and the Data Protection Act 1998
  

Additionally, a Social Media Policy needs to be available to staff and Communication of this policy is imperative. Those standards which are expected need to be communicated both through the introduction of the policy but also through training on these issues. Similarly, this is a fast moving area with new media appearing each year. Any necessary changes in working practice or policy need to be reviewed on a regular basis with any amendments or updates communicated to your employees.
 
What can you do?

As has been seen in past cases, such as Preece v JD Wetherspoons plc ET/2104806/10, an employee was fairly dismissed for making derogatory comments about customers on Facebook whilst at work. Notably, her employer had a clearly drafted policy which warned that employees might be disciplined for making derogatory comments in blogs about customers, staff or the organisation. A properly prepared social media policy can in certain circumstances  provide employers with the means by which employees are held to account for the comments which are made in a virtual space but which have a significant impact in the work place.
 
However there are shades of grey in this area, and any comments considered to be derogatory must be weighed against the actual damage which might be caused by those comments as the recent case of Whitham v Club 24 Ltd t/a Ventura showed. An employee who had posted relatively minor comments about her workplace on her Facebook page was held to have been unfairly dismissed when the matter came before the Industrial Tribunal, as the comments she had made could not be shown to have caused reputational damage to the employer, and so a degree of balance needs to be struck.
 
What is clear however is that Tribunals like policies, and the best way to protect an employers interests is by having a clearly drafted policy in relation to Social Media, so that any decision taken by the employer can be justified in all the circumstances.
 
Should you require assistance in preparing or amending a Social Networking Policy then please contact a member of our team.

Gareth Walls
A&L Goodbody, Northern Ireland
6th Floor, 42/46 Fountain Street,
Belfast, BT1 5EF
Tel: +44 28 9031 4466
Fax: +44 28 9031 4477
e-mail: gwalls@algoodbody.com