Legal

The perils of social media in the workplace

15 Jun 2020 By Charlotte Marshall and Emma Vennesson

A recent high-profile resignation in the real estate world has underlined how the use of Instagram and the like at work can be a double-edged sword. Charlotte Marshall and Emma Vennesson explain

Daniel Daggers, also known as ‘Mr Super Prime’, was a successful partner in Knight Frank’s ‘super prime’ real estate team. Daggers has an active social media presence, with more than 30,000 followers on Instagram, where he regularly posts pictures of luxury real estate. However, Daggers resigned from Knight Frank in November 2019, following a complaint from a client that Daggers had posted pictures online of their home without permission, and had compromised their security and privacy.

Daggers’ case underlines the challenges and opportunities of social media in the workplace: undoubtedly, his use of social media was key to his success, but also led to his fall from grace. What measures should employers put in place to prevent their employees misusing social media, and what should they do if misuse occurs?

Key to managing social media in the workplace is to implement a policy that gives clear guidance on social media usage. Such a policy is important, not only to set expectations and prevent misuse from occurring, but also to assist employers if they need to discipline employees for social media misuse. A social media policy should clearly state that any breach may result in disciplinary action being taken, up to and including dismissal. It is worth noting that only in the most serious incidents, however, is dismissal for social media misuse likely to be reasonable.  

The provisions to include in a social media policy will be specific to each employer’s business needs. For example, some employers may wish to prohibit staff identifying themselves as an employee of that company on social media channels, while others may request that employees make it clear on social media channels that their use of social media is in a personal capacity and any views expressed are their own. 

For employers where the use of social media is necessary for business, as in Daggers’ case, employers should set out specific guidance about what is, and what is not, acceptable for work-related social media. Prohibition on posting clients’ information, or even referring to clients by name or implication, are likely to be necessary. Likewise, policies should clearly state that social media use must not damage company reputation, or that of the company’s clients, and that the communication of any confidential or other business-related information is strictly prohibited.

Businesses should ensure that related policies, such as those dealing with bullying and harassment and confidentiality, are updated in line with their social media policy. For example, employers should consider including bullying and/or harassment of colleagues via social media as a specific example of bullying. They should also consider providing specific training for employees who use social media frequently in their role. 

To prevent social media misuse, companies may want to monitor employees’ use of social media. However, employers should be aware of their obligations in relation to this, particularly under relevant data privacy legislation. 

Where social media misuse has occurred, businesses should take a robust approach. Even if the social media misuse does not directly affect the company, UK courts have found employers vicariously liable for employees’ social media misuse (such as discriminatory comments) where it was found to be in the course of employment. Employers should therefore ensure they deal with any incidents in accordance with their disciplinary procedures, and that any such processes are thorough and well-documented. 

Charlotte Marshall is an associate and Emma Vennesson counsel at Faegre Drinker

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