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Social media can be an effective tool for businesses. It can provide instant access to a customer base meaning that it can be an extremely effective marketing tool. However, it also poses a number of risks for employers, particularly where employees make inappropriate comments on social networking sites (whether during, or outside, working hours). With social media use continuing to soar, it is important for employers to understand how best to protect their business and reputation online when employees are using social networking sites.
Facebook comments
A number of cases have hit the headlines recently, involving inappropriate comments from employees on social networking sites, A recent example is Crisp v Apple Retail (UK) Limited, where the Tribunal looked at whether or not the dismissal of Mr Crisp for comments he made on Facebook, relating to his employer (Apple) and their products, amounted to an unfair dismissal.
Mr Crisp worked in an Apple Store and posted negative comments on Facebook about Apple and its products. These comments were made on a "private" Facebook page, out of working hours. The comments were printed and handed to the Store Manager by another member of staff. Mr Crisp was dismissed for gross misconduct as this contravened Apple’s clear policies concerning behaviour on social networking sites and behaviour outside the workplace.
The Tribunal held that Mr Crisp’s dismissal was fair. The Tribunal found that there was a clear Social Media Policy (the “Policy”) and during an induction process it had been made clear to all employees what behaviour was prohibited on social networking sites and comments regarding Apple products or the brand generally.
The Tribunal also considered that other employees had been sanctioned for similar offences and they were clear that Apple had applied the Policy consistently to all members of staff. Mr Crisp sought to argue that his Facebook settings were set to “private” and he had not identified Apple as his employer on his Facebook page. However, the Tribunal held that there was nothing to prevent Facebook “friends” from copying and passing on the comments made by Mr Crisp. In fact, it was the actions of another employee by copying and printing the comments that brought them to Apple’s attention. Apple successfully argued that their actions were justifiable and proportionate to protect their commercial reputation.
Key points for employers to consider
This case, amongst others, highlights the importance of ensuring that employees know what is, and is not, acceptable use of social networking sites. If not already in place, employers should consider implementing a social media policy. Alternatively, employers may wish to review current policies to ensure they are robust in protecting business needs.
Why have a social media policy?
A policy enables employers to set clear guidelines on acceptable behaviour for employees and ensures managers can deal with any potential breaches consistently. It can also help protect employers against liability to third parties for the actions of employees (including customers and clients).
What should a policy include?
ACAS recently published guidance for employers on social networking and covers how to develop a policy. Any policy should include the following:
- acceptable standards of behaviour and social media use (e.g. which could cover the internet, smart phones, social networking sites and blogging and tweeting). Online behaviour should be treated the same as offline behaviour;
- potential sanctions for failure to comply (e.g. disciplinary action up to and including summary dismissal);
- consistency with any disciplinary procedure;
- a clear prohibition on bullying or any form of discrimination via social media; and
- potential restrictions on statements concerning clients, customers and products
It is only in recent times that employers have had to address the risks posed by social media in the workplace. Although social media is clearly a valuable tool for businesses, having a comprehensive social media policy is just as valuable, and can protect employers against damage to their reputation and minimise the risk of litigation.
Gemma Rusling, Solicitor in Fieldfisher’s Employment and Pensions practice.