Most of us make use of social media daily. It is accepted that use of social media sites benefits communication, enabling active engagement with others about activities, services and events. Organisations like the Care Quality Commission use social media sites to share information and to gain ‘intelligence’ feeding risk profile scorings which in turn inform inspection decisions. Where would we be now without these sites, we might well ask?
However, as much as social media use may be good for marketing, improving staff relations and boosting reputations, uncontrolled use can also threaten disrepute and the well-being of individuals and businesses.
Some comments may breach professional codes of practice, such as the British Association of Social Workers’ guidance which warns against ‘accepting service users and their carers as online “friends”.’ Apart from attracting ‘trolls’ (persons wanting to vent anger at a service or individual online) unguarded comments might well be libellous, discriminatory, breach confidentiality or disclose sensitive information. Sites have been used to cause harassment, threaten harm and make obscene, grossly offensive or false remarks. At least half of the calls received by the Police about nuisance crimes have been reported to relate to social media site comments; prompting the Director of Public Prosecutions to issue guidelines as to when the Police and Crown Prosecution Service should be involved.
Think before you act
Active use of sites may be encouraged by all means but to ‘show personality not genitalia’ and with the clear caveat to engage brain and think about the consequences (both personal and professional) before making any posting.
An example of brain not being engaged in considering consequences is provided by the case of Taggart v TeleTech UK. Mr Taggart posted the comment, ‘Quick question who in TeleTech has ‘A’ not tried to f***? She does get around.’ TeleTech took the view that this was gross misconduct and the Tribunal agreed, costing Mr Taggart his job.
In Young v Argos the employee succeeded with an unfair dismissal claim having been sacked for ‘liking’ a comment on Facebook by a former employee which said that their manager was, ‘as much use as a chocolate teapot’. Ms Young added, ‘that this was the worst year in 15 years of working for Argos’ and it is reasonable to speculate that at some level it wasn’t a good year either for Argos.
Notably in the High Court, freedom of speech has triumphed to allow expression of views albeit at odds with upholding equality and diversity policies aimed at ensuring good relations in the workplace. In Smith v Trafford Housing Trust, Senior Manager, Mr Smith, posted links to news articles about gay marriages in church on Facebook adding comment ‘an equality too far’. Consequently, he was demoted, but the High Court found the employer in breach of contract for imposing this sanction. This was because the Court considered that Mr Smith had used the site clearly for personal and not work-related purposes. Accordingly, even though Mr Smith had offended workplace colleagues holding different views, he was found to be entitled to express his lawful personal opinions without being subject to sanction at work.
Freedom of speech is, of course, not just the freedom to say agreeable things. Nevertheless, strongly held contentious views made public (via friends) do have the potential to reflect adversely upon individuals, their workplace organisation and overall sour workplace relations.
Each case will turn on its own facts as to whether work-related and going beyond silly banter to the point of warranting sanction. The cases mentioned highlight difficulties with maintaining boundaries between working and private life and between preserving freedom of speech whilst avoiding defamation and malicious injury. Costs for all are never neutral especially those related to bringing and defending cases which can be high.
Protecting your business
Protecting your business and your staff is a ‘must’. Access to websites can be blocked on work computers but ban on private use outside of the workplace, and outside of work-time, cannot be imposed. An employer can, though, make clear the boundaries of acceptable use.
Consider taking the following four steps:
- Implement a social media use policy laying down the ground rules, and boundaries, making clear the sanctions to be imposed for acting contrary to the policy;
- Raise awareness within the policy about Human Rights and Equality legislation;
- Issue the policy to all staff, and provide training, drawing attention to the type of comments that will be considered to amount to misconduct whether occurring inside or outside of work;
- Secure proof that staff are aware of the policy and associated sanctions for abuse of its terms.
The consequences of not having implemented a social media policy were made clear in Lerwill v Aston Villa FC. Mr Lerwill won his unfair dismissal claim because he was not given clear guidance about acceptable media use or the consequences of sanction in respect of his actions.
We see many cases where employers struggle to prove that the employee was aware of any restrictions on social medial use. Without a policy, and evidence of completed staff awareness training, the employer faces an uphill battle to satisfy an employment tribunal that it was fair to discipline an employee for any concerns about social media use. Speak with an HR adviser or employment lawyer about devising and implementing a social media policy to ensure you’re protected.
Guidelines on prosecuting cases involving communications sent via social media:
Social care meets social media – what’s holding the sector back? Guardian
Liz Mulvaney is National Head of Health, Healthcare at Freeths LLP.