TV presenter Alastair Stewart recently resigned over ‘errors of judgement’ on Twitter. The ITV stalwart had tweeted an obscure quote from the Shakespeare play Measure for Measure in which he referred to a black man as an ‘ape’.
This is just one case that clearly demonstrates the risks of social media for businesses. There is no doubt social media has revolutionised the way people communicate. And with people increasingly creating and sharing content online, the nature of that communication has changed too.
However, as people use social media both inside and outside of the workplace, this can present a unique set of challenges for employers and places greater importance on businesses adopting social media policies.
The way in which employees use social media carries risk for any business. These risks include reputational damage, employees posting defamatory or discriminatory work-related comments for which their employer is potentially liable, the disclosure of confidential information – which could include commercially sensitive information belonging to the business – and infringement of third-party intellectual property rights. So it is imperative for businesses to put effective social media policies in place.
The Alastair Stewart incident is just one of many high-profile cases reiterating the importance of ensuring a social media policy is well thought through. For example, the case of Crisp v Apple Retail UK saw an Apple employee dismissed for posting several negative status updates on Facebook concerning the company and its products. Mr Crisps’ subsequent dismissal was found to be fair on the basis that Apple’s policy had been clear on the consequences of social media misuse.
In contrast to the Apple case, an employment tribunal found that an Asda employee posting she’d be “happy to hit customers on the back of the head with a pick-axe” were not enough to warrant dismissal, as one of the factors was Asda’s policy. The Walters v Asda Stores case highlighted the importance of clearly setting out the consequences of posting harmful comments in a social media policy, especially those types of behaviours for which an employee could be dismissed.
Similarly, in 2010 a pub manager who had been on the receiving end of verbally abusive comments from customers, later posted about these on Facebook. Because Wetherspoons had a clear policy on the consequences of inappropriate comments posted on social media, dismissal of the pub manager in the Preece v JD Wetherspoons case was found to be fair.
While the outcome of any case depends on the facts, the content of a social media policy will be important if a business has to take action and enforce this. The types of clauses that should be mentioned include: rules about accessing social media sites while at work; information about any monitoring of employees’ use of social media in or outside the workplace; an outline of any prohibited use of social media; guidelines for employees required to use social media for business; and the details on the consequences of breaching the policy.
In today’s ever-changing landscape, where employees use of social media outside of work can give rise to risks, it is important to implement a social media policy tailored to the specific needs of a business. However, it doesn’t stop there – companies must also take steps to communicate the policy to employees. If businesses fail to understand the rapidly changing social media landscape we are now part of, they will fail to keep up.
Jasnoop Cheema is a specialist in commercial law at Moore Blatch