Facebook, WhatsApp, YouTube, Instagram, Pinterest, Twitter, Tik Tok, LinkedIn, Yammer - with more platforms emerging every year, social media is no longer confined to our leisure time, but affects nearly all aspects of life. Its instant nature means that, once posted, the content is largely out of the writer’s control and can trigger both positive and negative reactions – the latter in particular can escalate quickly and be costly in terms of reputation and/or legal consequences.

As employees get caught up in online storms more often, the organisations they work for need to come up with robust social media policies and measures to protect them. Below, we give some key tips in terms of the risks and issues employers face and what good policies and procedures can do to mitigate them.

Reputation management is one of the important issues for employers

Social media offences can lead to a number of legal proceedings, from civil claims (claims for defamation, harassment, breach of confidentiality / data protection) to disciplinary cases, employment tribunal claims (unfair dismissal, whistleblowing, breaches of the Equality Act) and raise vicarious liability issues. A good social media policy is the first step to protecting your organisation and employees against these.

Where to start with social media policies – our top tips

Overall

• Adopt a “common sense” approach.
• If possible, you could consider simply extending your existing IT policies.
• Focus on the positive…
• … but remind individuals that there are consequences for breach.

What to include

• Consider broadening the scope of the policy to include those who are not employees such as bank, agency and locum workers or develop separate policies for such staff groups on the use of social media.
• Emphasise that all activity in and out of work is potentially covered and should be honest and accurate.
• Consider imposing limits on internet, email or smartphone use.
• Advise employees on adapting their privacy settings for social networking sites and about the duty of confidence.
• Blogging or tweeting on behalf of the organisation – what are the rules?
• Specify possible sanctions.
• Link to other policies where necessary.

How to communicate the policy

• Your social media policy should be communicated at the outset of employment.
• Consider frequent “refresher” sessions so everyone knows their obligations, especially since technology and social media often change.
• Include the policy contents in your mandatory ongoing learning.

What to do if you need to take disciplinary action

Although social media itself is still relatively new and different from other forms of communication, there is no need for a separate process. You should follow your normal disciplinary procedure and ask the following questions:

• What was said/done?
• What damage is there?
• What mitigation is there?
• What sanctions may be appropriate?
• What sanction is appropriate?

This should be followed by a fair investigation and selection from a range of reasonable responses.

However, there are some pitfalls, such as:

• Conflicts in terms of beliefs.
• The public / private nature of the communications.
• The severity / impact of the post in question.

Depending on the above aspects, you might want to consider a regulatory referral and/or police involvement.

Our top tips for protecting staff from online abuse

• Show support and sympathy.
• Try to prevent retaliation by staff.
• Send a cease and desist letter, either from you and/or from Capsticks.
• Contact the social media platforms for assistance and advice.
• Use measures such as:
  • blocking and/or deflecting;
  • referral to police and/or regulators; and/or
  • legal remedies.
• Consider if there has been defamation and if that is causing or likely to cause serious harm.
• Consider the need for a Protection from Harassment Act injunction where there is a course of conduct causing alarm, distress and/or threat of violence.

How Capsticks can help

Capsticks is a leading law firm for employers, bringing together a team of experts who deal with the issues you face on a daily basis. If you find yourself in conflict because of a social media issue, you can rely on our technical skill in resolving complex disputes, using the most effective strategy based on your circumstances. We can also help you to set up effective policies and provide training on handling common issues or advising your employees.

Please speak to Jane Barker or Nicola Green to find out more about how Capsticks can help.