Social Media- avoiding the pitfalls and making it work for your business
Joanna Atkinson of JMA HR & Legal Ltd considers the employment law and HR issues for businesses arising out of the growing popularity of social media.
Whatever your attitude to social media, whether you engage in blogging and tweeting on a regular basis and/or use LinkedIn for recruitment and developing your business contacts, the impact that the increasing interest in social media has had on employers cannot be overlooked.
On the 'up side', social media provides the opportunity to promote your business often more effectively and at a cheaper cost than more traditional methods. Networking has also become much more quick and easy, and social media has opened up greater recruitment opportunities.
On the 'down side', however, the following are some of the risks that social media can present:
This is often the main ground for justifying the dismissal of an employee who has perhaps posted damaging comments about the employer or its customers/clients online. However, recent decisions from the Employment Tribunal have shown that employers will need to be clear about the extent of any actual or potential damage that may have been caused by the employee, and should also be able to evidence this. It is also important that the employer's policies concerning the use of social media have been made clear to the employee if he/she is to be dismissed fairly in these circumstances.
Under discrimination legislation, employers can be held 'vicariously' liable for their employees' actions. Therefore, where comments are made online by an employee about the employer or its customers/clients, and whether or not the employee was using the employer's equipment, the employer could be liable. Employers should therefore ensure that they have the appropriate policies and procedures in place which set out the standards expected of employees, and make sure that all employees are aware of them.
Employers have always wanted to protect confidential information. They should now review contracts and confidentiality agreements to ensure that these also include information that is kept online. They should also consider the question of who owns information such as business contacts kept by their employees on LinkedIn, for example. At the moment, there is very little case law in this area, and so employers should consider imposing their own controls on the use of such social networking websites and seek to maintain that the contacts remain the property of the employer. They will also need to think about the return of such information when the employment relationship comes to an end.
As ever, employers need to be careful about their reasons for rejecting a candidate. Social networking websites provide the opportunity for employers to find out more about candidates but this also increases the risk of claims, such as discrimination, if the employer relies on information that suggests a discriminatory reason. Employers should therefore consider their recruitment practices and how they use social networking websites as part of that process.
Employers will also want to consider their policy regarding their employees' access to and use of social media whilst at work. It may be that this will be restricted to break times and after hours only. Certainly, an out-right ban may be unrealistic in this new social media age. However, it is vital that any rules are clear and communicated fully to all employees.
The RM2 Partnership is pleased to recommend Joanna Atkinson, who is an experienced solicitor and a director of JMA HR & Legal Ltd, a specialist legal practice which provides HR and employment law advice. She regularly runs free employment law seminars and workshops for employers. For more information about the current series of events please go to www.jma-hrlegal.co.uk or telephone her direct on 01252 821792.