Refining the message

It would seem that some hot topics maintain their temperature longer than others. No more so than social media, whose power and users continue to grow unabated. Even over the course of a couple of years, businesses, customers and employees are all using social media in new and different ways. This moving target poses risks for employers, who may think they have ticked the box by adopting a social media policy a few years ago and that is the end of the issue. The changing nature of social media means employers should be reviewing their policy and approach at least twice a year.

In the last few years the focus for employers was on introducing a social media policy and training staff on their organisational approach (see Journal, December 2010, 40). Now that we are starting to see some case law develop, policies and processes should be reviewed in line with best practice.

In this article we discuss some recent trends and cases that are shaping the current debate from an employment law perspective. So even if your firm has a social media policy, or you’ve already advised your clients on this issue, here are some key issues to consider when reviewing the policy.

Trending now – Twitter

One significant development of 2011 is the emergence of Twitter as business tool. While Facebook and LinkedIn continue to present risks for employers, organisations need to consider whether their social media policy is sufficiently geared towards the unique issues which Twitter presents.

I would advise employers to include a specific policy section or guidelines on Twitter, dealing with tweeting on a personal and business level. This should cover who tweets when and about what. Personal postings must not say anything negative about the company, staff or customers. It should be made explicit that disciplinary action may follow if this rule is breached. Business postings need to be restricted to a certain number of users, who are advised to tweet responsibly and understand risks regarding defamation and reputational damage.

Early concerns regarding Twitter and blogging related to unauthorised and inappropriate postings, and although this remains a live issue, new considerations need to be taken into account.

Policies now need to be updated to cover appropriate but unauthorised postings from a PR perspective. Twitter is fast becoming a news distribution channel available to everyone. Take the scenario that a company wins an award and wishes to maximise its coverage through its PR agency with a senior figure adding comment. Before this happens, an overenthusiastic employee tweets the information first. For example, I recently read that academics are now using Twitter to promote their research findings to a wider audience. This sounds fantastic in principle, but what if the employer university wants a say in how this information is publicised? This really shows how far Twitter has developed in recent years. Who would have thought that a microblogging service used by celebrities would be embraced by the ivory towers of academia?

The PR challenge

Employers also need to consider negative PR. Are staff trained on how to deal with social media PR crises? What happens if someone actively targets your organisation on Facebook, like the recent issue with Braehead shopping centre (see box right)? Are your marketing staff trained on how to deal with this? Does your policy cover this?

Ideally, employers want to review their approach to social media on a proactive basis, to anticipate new risks so that they are covered by their policy if an issue arises, rather than reacting once a problem emerges.

Anticipating risk is a key issue for lawyers, and lessons can be learned from the issues of others. Looking at the recently developing case law, one of the key issues for employers is privacy and how to deal with comments made out of hours. One of the most challenging aspects of social media, from an employment law perspective, is the way it blurs the boundaries between work and personal life. What is clear from recent case law is that employers should not overreact to fairly innocuous comments. Employers need to bear the following themes in mind:

Communicate your policy

For those employers who are not yet organised, the next case underlines the benefits of a social media policy. In Preece v JD Wetherspoon plc, ET/2104806/2010 the employer narrowly avoided a finding of unfair dismissal by virtue of its policy which prohibited the use of Facebook at work. The tribunal ruled that a pub manager was fairly dismissed after she made inappropriate comments on Facebook about two of her customers.

Her employer was entitled to take the view that the conversation on Facebook, which took place while she was at work, was serious enough to merit dismissal. It did not matter that she thought her privacy settings meant that only close friends could see her entries; in fact, her full Facebook list of 646 friends could see her conversation, including the daughter of one of the customers in question, who complained to the company.

The tribunal stated that it would have been more inclined to issue a final written warning, but that had it arrived at that decision, it would have been substituting its own view for that of Wetherspoons.

Find supporting evidence

In the recent case of Whitham v Club 24, ET/1810462/2010, a manager was dismissed after she posted comments on her Facebook page where she said: “I think I work in a nursery and I do not mean working with plants”. She was a team leader in a call centre which handled calls for external third parties, including Volkswagen. The comments were posted after a bad day.

Management was alerted by her colleagues who were Facebook friends. Disciplinary procedure followed; despite her exemplary record, she was dismissed for gross misconduct. Her employer argued the comment could have had a detrimental impact on its relationship with Volkswagen, and had affected its reputation.

Unsurprisingly, the tribunal ruled the dismissal unfair. It noted the “minor” nature of the Facebook comments and the fact that they did not specifically refer to the employer or Volkswagen. It also considered that the employer had failed to conduct investigations into the actual effect of the comment on the client relationship.

This case exemplifies the point made in the recent ACAS guidance on social media, that employers should treat digital bad behaviour no differently from normal bad behaviour. In the same way that it is unlikely anyone would be summarily dismissed for telling work colleagues that they worked in a nursery, it seems most unreasonable to dismiss them for posting such a comment on Facebook.

Privacy may be trumped

The next case, Gosden v Lifeline Project Ltd, ET/2802731/2009, considers the scope of privacy in the context of an email sent out of hours. While it is only case I am aware of regarding privacy where a tribunal agreed with the employer’s response, it is an extreme example, and should not be relied on to support more mundane comments.

Gosden worked for a charity which assigns employees to HM Prison Service to work with drug users in prison. In October 2008, he sent an email, outside working hours and from his home computer, to a Prison Service employee with whom he had worked. Containing material of a racist and sexist nature, it was headed: “It is your duty to pass this on”. The employee did pass this on – at which point it was picked up by the Service’s firewall. The Service contacted the charity and banned Gosden from working on its premises.

A disciplinary panel found Gosden guilty of gross misconduct for having carried out an act which might damage Lifeline’s reputation with one of its biggest clients, and also for having breached its equal opportunities policy. The tribunal found it reasonable for Lifeline to regard the forwarding of the email to one of its biggest clients as something which might damage its reputation. It also considered the right to a private life under the Human Rights Act 1998, but considered that despite the time and place of the sending, the email clearly was not intended to be private.

Assess impact of damage

Taylor v Somerfield, unreported, also reinforces the point that employers need to consider the scope of the reputational damage and who has accessed the content.

Taylor was dismissed after posting a video on YouTube showing himself and two of his colleagues hitting each other with plastic bags. The company said that he had brought it into disrepute. The tribunal disagreed and said the only way the company could have been identified was through knowledge of its uniforms. In fact, the video was removed after three days and there had been only eight hits – three of which were from the company’s managers. So there was hardly major reputational damage. This case seems to say that hypothetical damage is not enough; the employer needs to look for actual damage. Employers should also bear in mind that the publicity arising from the tribunal hearing was more damaging than the original incident.

Keeping one step ahead

If the last few years are anything to go by, social media will remain in a state of permanent evolution. Employers need to keep their policy under review to keep ahead of the risks. And while the responsibility for reviewing the social media policy may rest with HR or IT, they need to ensure that input is obtained from other social media users, including marketing, PR, and customer complaints. Joining up all the dots is key to ensuring employers present a holistic social media strategy which covers the bigger picture.

Going viral

The Braehead shopping centre incident took place on 7 October, when a father was approached by security staff after taking photographs of his four year old daughter. A dispute ensued over whether the photos should be deleted from his camera, because of a “no photography” policy in the centre, and police were called. The father accused the staff and police of a gross overreaction and a “Boycott Braehead” Facebook campaign page was set up, which within 24 hours had attracted around 20,000 “like this” followers. Three days later the centre’s owners apologised and said they were changing their policy on photography.