Would your policy stand up before a Tribunal?

When social media and the law collide it can often be a dangerous mix. And with growing numbers of employees Facebook-ing, Tweeting, Pinning, LinkedIn-ing, YouTube-ing and blogging during (and even outside of) working hours it can present a tricky situation for employers to manage

As our recent Social media and the law report showed, businesses are aware that social media can present a legal risk. Increasingly, the UK has seen developments in the law surrounding an employer’s ability to take action against employees for misuse of social media. A clear, comprehensive social media policy is still the best way to protect your business, and can provide valuable guidance as to how your employees can become advocates for your business in a constructive and beneficial way. As we have already shown in our previous blog there are many ways to create a comprehensive and positive policy for your business.

However, as the reasoning from Tribunals and the arguments from employees become more sophisticated just any old guidelines will not do. Here are three tips to ensure your social media policy stands up before a Tribunal:

1)      A clearly worded policy

A clear, well defined policy is essential if an employer wants to be able to rely upon it to discipline or dismiss an employee. In the case of Grant and Ross v Mitie Property Services UK Limited, two sisters were dismissed for excessive use of social media sites. However, the company’s IT policy permitted employees to access the internet ‘outside of core working hours’, which the Tribunal found unclear and therefore ruled that their dismissals were unfair.

2)      Training

An unused social media policy that sits in some long-forgotten cupboard is of little use. You should be able to prove that a social media policy has been communicated to staff. In the case of Crisp v Apple Retail (UK), Apple was able to fairly dismiss an employee for making several potentially damaging Facebook posts. Crucially for Apple, Crisp had been clearly trained when he started his employment on Apple’s social media policy. However, there are some quirks to social media that mean it is not enough to simply communicate the policy – further steps should be taken to fully protect your business.

3)      A proportionate response

If an employee’s actions have contravened your social media policy it may be necessary to act. However, the disciplinary action should be proportionate to the harm caused. Each case should be considered on a case by case basis – like many things in social media there is no one size fits all! With Taylor v Somerfield Supermarkets an employee was dismissed for bringing Somerfield into disrepute due to a video posted on YouTube showing two colleagues hitting each other with plastic bags in a storeroom. However, the tribunal held that the dismissal was unfair as the video only gained 8 hits – mainly from the result of the disciplinary panel viewing the video and therefore did not bring the store into disrepute. Your response should reflect the damage caused by the employee’s actions.

A social media document can’t just be a static document. With the speed that social media is moving it is important to keep it relevant and updated. Read more on who should be responsible for your social media policy and who should take responsibility, and own, your social media content. With social media litigation increasing, now is the time to get better informed!

Images courtesy of David Saunders, Flickr under a Creative Commons Attribution-ShareAlike 2.0 Generic license

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