1. Make sure you have robust policies
Social media is instant, and once things are posted they can trigger positive and negative reactions – the latter in particular can escalate quickly and be costly in terms of reputation and/or legal consequence.
A well-drafted social media policy is the first step to protecting your organisation and employees against this.
It should cover the use of social media by employees at any time, including outside of office hours for company accounts and whether they can use company devices to access social media platforms.
The policy should set out the parameters for use of social media at work, including when people might use it as a business tool. For example, employees may be encouraged to network on Linkedin, post on a company page or share content on Instagram on behalf of clients. However, spending an hour watching TikTok videos may not be a good use of time and you will want to make this clear in your policy.
You’ll also want to make it clear what is expected of employees when on company social media accounts as they are representing the business online.
Other things to consider in your policy include advising employees to adapt privacy settings for social media sites and imposing limits on internet, email or smartphone use while at work.
Your social media policy should be communicated from the outset of employment, and you may want to consider frequent refresher training sessions so everyone knows their obligations, especially since social media changes so often.
2. Monitoring social media
Although there is no law against monitoring employees’ use of social media, employers should take care when doing so and have a clear policy notifying employees they will carry out this monitoring and the methods used.
There are many valid reasons for monitoring how they use social media during work hours, including to protect the interests of the company and its reputation, to safeguard employees against online harassment and to manage any misconduct.
Monitoring without cause, or without a clear policy in place, may amount to a breach of data protection laws and a breach of the implied term of trust and confidence in all employment contracts.
Monitoring of social media use for work purposes will also likely be justified, but clear policies should be in place.
Monitoring of personal social media accounts on the other hand, is difficult to justify. You will have to show very clear cause for doing so, and have a clear policy in place.
You also cannot ban employees from using social media. What you can do is make employees aware of how to use social media safely and appropriately.
3. Using social media profiles in recruitment
When recruiting, there’s nothing stopping you from looking at an individual’s social media profiles and if information is publicly available, you do not need consent from candidates.
Indeed, some social media sites such as LinkedIn are actively used by employers for recruitment. However, you should take caution when doing so.
Social media profiles and content often contain a lot of personal information, including religious beliefs, sexual orientation, age, disabilities – all of which are protected characteristics under discrimination law. Basing a hiring decision on this could leave you open to claims of discrimination from rejected candidates.
Keeping this personal data may also not be compliant with data protection legislation. This means that you may be advised to forewarn or obtain consent from job applicants before undertaking a search of social media profiles (or at least of personal profiles, as opposed to professional profiles on sites such as LinkedIn).
Of course, there could be instances where a search of social media raises ‘red flags’, and, this could form a legitimate basis for an applicant’s rejection. For example, a candidate could be active in posting extreme or offensive political views.
In this case, you should balance the information gathered from social media with an effort to get to know the candidate through interview. If you reject the candidate on the basis of social media, you could be at risk of having to defend against accusations of bias or discrimination.
4. Be clear about who owns profiles
In your social media policy, you should make it clear the standards expected when employees are using company profiles.
This is more difficult to enforce with personal profiles. However, in some cases, you may have an interest in the information in a personal profile. Ownership of that information can be unclear, particularly if an employee has used a profile for work and personal matters.
In many cases, your interest is likely to be in the relationship formed via social media, rather than the information available online. For example, a sales employee may have a list of contacts built up via LinkedIn. Your interest in that scenario is likely to be in the underlying relationship with the customers, rather than the list of contacts itself, which is simply information that will probably (although not always) be available publicly to anyone who views the profile.
The situation may be more complex if an employee has concealed the information from you, for instance by deleting a contacts list or a profile. You may therefore want to specify in your social media or IT policy that social media profiles set up for work purposes, and information contained in them, will be owned by the employer – particularly where the information in the profile itself is valuable in its own right.
5. Follow disciplinary procedures if you need to
If there is a clear breach of your business’s social media policy, for example by using social media platforms during work time or using a work computer and this is against company policy, disciplinary action is likely to be justified.
In particular, if an employee damages your business or its reputation, is responsible for sharing confidential information, or negatively effects other employees, you can take disciplinary action – this must done consistently.
If you think that there may be justification for disciplinary action, but you are unsure, it’s important to seek legal advice, but the first step will usually be to investigate the situation under your disciplinary procedure.
You must ensure matters are investigated thoroughly, and that employees have sufficient notice of upcoming disciplinary meetings with advance access to any evidence being used. Employees have a legal right to bring a companion to these meetings, and they also have the right to appeal the outcome.
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