Social Media and Business – When Words Become Woes

A news story reported by The Chronicle recently grabbed our attention. A Newcastle beer garden barred a woman for her ‘vile’ Instagram post about her fellow patrons. And it got us thinking.

We all know – unfortunately, a little too well, by now – the damaging and sometimes tragic repercussions that can follow online obscenities in their wake. The atrocities some keyboard warriors are capable of behind the comfort of anonymity has been brought to life by some high-profile personalities in recent years: trolling (Jesy Nelson); racism (Marcus Rashford); death threats (Carole Baskin).

But what happens when this online discrimination impacts a business? Where does – and where should – a company stand when it’s their patrons (in the case of this most recent story), or their employees who are the ones behind the posts?

HOW MUCH TROUBLE CAN I GET IN FOR PERSONAL SOCIAL MEDIA POSTS THAT MAY GO AGAINST MY EMPLOYER’S VALUES?

‘Ultimately, you can be disciplined or even dismissed for comments you make on social media,’ explains Martha. ‘It all comes down to what sanction (if any) is reasonable in the circumstances. This will depend on a number of factors, such as:

• the specific content of the post
• whether there is a clear connection to the employer
• your social media privacy settings
• whether the post was made during work hours and/or utilising the employer’s IT equipment
• how senior you are and/or whether you have managerial responsibility
• previous disciplinary record and length of service
• whether the terms of any social media policy and/or employment contract have been breached

WHAT STEPS SHOULD I TAKE AS AN EMPLOYER IF MY EMPLOYEE IS POSTING INAPPROPRIATE MATERIAL ON SOCIAL MEDIA?

‘It’s important to strike the correct balance between protecting your business interests and avoiding interfering with an employee’s freedom to engage with social media,’ Martha says.

You must still ensure that you adhere to the relevant rules about data protection and lawful processing of personal data. 

‘You should be clear to your employees about whether you intend to monitor their social media while at work. You should also clearly set out the nature and extent of such monitoring, as well as the basis for such monitoring.

‘You may also wish to conduct a data protection risk assessment, before undertaking any monitoring of your employees’ social media while at work.

‘You should not monitor an employee’s social media without a legitimate reason and without notifying the employee first, otherwise you risk breaching data protection legislation. Covert monitoring should be used only in exceptional circumstances.’

‘Similarly, including appropriate clauses in the contract of employment (such as confidentiality clauses) may also provide a further line of defence.

‘You should ensure that the social media policy is widely communicated to all employees as part of their induction. You should also ensure that there’s training to embed the social media policy.

‘If you’re particularly concerned about your company’s core values and reputation, include these values in the social media policy and training sessions. Make it clear what is acceptable, and what is not.’

Ask the employee to remove the social media post and consider any disciplinary action carefully

‘Once you’ve gathered the right information, you can then contact the employee and ask them the take the relevant post down.

‘It can be easy to panic about your company’s reputation in the circumstances. However, you should remember to follow the correct disciplinary procedures. Crucially, you should still give the employee a chance to explain their actions before any disciplinary action is taken. Any disciplinary action should be proportionate.

‘If you have a social media policy in place, then this can be a very useful reference point during any disciplinary process.’

Some key points for employees:

• Be aware of your privacy settings – check who can access your posts (including who can re-share posts). You should also check who can see your comments or items you have “liked” or “favourited”.
• Remember that setting your account to private may not be enough, as content can be screenshotted and re-shared. It only takes one colleague, customer or a friend-of-a-friend to take a screenshot of the content and share it with your employer.
• Avoid posting any work-related material on your social media if you can – particularly if it is critical or negative of your employer, customers or colleagues.

To find out more about the legalities of social media and business, or if you’re looking for initial advice in the strictest of confidence, visit Samuel Phillips’ website or Facebook page.