Employees like, dislike, emoji this, hashtag that, snap, comment, re-tweet and share on just about anything and everything, says Karen Seward, partner at Allen & Overy LLP. However, there are comprehensive, empowering, non-draconian ways employers can protect their interests.
We all know how little respect social media platforms have for boundaries. Social media has infiltrated every aspect of the workplace, obscuring if not now obliterating the line between the private and the professional. And whilst cultural norms and practices have developed in the social media space, the same doesn’t yet apply uniformly in the workplace.
This new normal provides employers with a serious risk management challenge. It’s like an unruly kid poised to create havoc in the workplace. Traditionally employment policies dealt with virus infection but that was before smart phones: employees don’t have to do a thing on work systems to cause you serious trouble.
Challenge 1: the medium
One of the biggest challenges for workplaces is the medium itself. The employees most likely to be blanket bombing over social media, be it business-related or personally, are millennials and post millennials.
For them, social media provides instant engagement in and, as the name suggests, a social space to do it. They like, dislike, emoji this, hashtag that, snap, comment and share on just about anything and everything. They know how to curate a posting to generate interest and noise and are singularly focussed on getting more followers.
But rarely is anything considered for more than a nano-second. A pause button would be contrary to the speed and spontaneity that characterises the medium. And an attractive element to users is that parents, teachers, and bosses have no place or space to exercise control, sanity check or to sanitise what is said and done in the digital space.
Taking this model into the workplace it is not difficult to see why it poses problems. For starters, it is frequently misunderstood that what is done socially has a permanence that can have a detrimental impact on the business or members of staff. It’s not speech; it doesn’t dissipate into thin air and employment case law is fast becoming littered with the detritus of negative and discriminatory conversations about work colleagues and employers.
All of a sudden there are rules and implications, those in authority are seeing what has been posted. Complexity is added by employee’s profound lack of awareness as to why their freedom of expression is qualified. Spontaneity has been replaced with the pause button. To change the behaviours learnt in the social world, and thereby manage these risks, employers need to take active steps to educate and recalibrate expectations and to use the pause button to maximum effect.
Preece v Witherspoon is an instructive example. Preece was a pub worker who was verbally abused by customers and subjected to threatening behaviour. She later made negative comments about the customers on Facebook, mistakenly thinking her privacy settings meant the world couldn’t watch her do it. In fact they did and relatives of the abusive customers complained to management.
Preece was dismissed fairly according to the employment tribunal. Her comments were about work, and the appropriate channel for Preece to vent her frustrations would have been the employer’s hotline provided for that very purpose. Critically, Preece had breached a policy that said her employer could take action where the contents of any blog were “found to lower the reputation of the organisation staff or customers”. Even though the tribunal found what the customers did was shocking, the Facebook entries were abusive and took place after the situation had calmed down.
Challenge 2: the law
The second challenge is the law itself. Employers may think that the law offers clear protections when an employee does something that impacts negatively on the business or its staff. The reality is that the law is way too ponderous for this digital age. Existing laws aren’t designed to apply neatly to digital situations.
Gaps emerge. They are unpredictable. Legal tools are too blunt or too sharp to adapt to an ever changing landscape, and instead employers have to continue to rely on a patchwork quilt covering privacy, data protection, anti-discrimination, unfair dismissal and intellectual property laws, that is fraying at the edges and proving inadequate to regulate the world of social media.
The employee-friendly case of Smith v Trafford Housing Trust shows a number of the difficulties an employer faces. An employee posted his opinion on Facebook that a gay marriage was “an equality too far”. His employer believed this contravened its policy of being strictly apolitical and non-religious and its explicit codes on discrimination and equal opportunity. The Court disagreed and defended the individual’s right to freedom of expression.
While acknowledging his comments could cause widespread offence, they were not technically unlawful under any discrimination law. And that’s what saved Smith. If he had expressed his views in a more intemperate and legally offensive way, the result would have been different.
DIY
As to what employers need do to mesh together a strategy to meet these challenges whilst not forgoing the huge potential that social media brings to the commercial world. DIY is the way to travel. They need to empower, and at the same time educate, their workforce.
The starting point is to articulate a social media strategy that acknowledges the risks but also promotes the opportunities. This can then be translated into a policy that supports the strategy and, in the absence of predictable laws, makes the rules as enforceable as possible.
The most successful policies are both comprehensive and facilitative: they protect the employer’s interests, and, from the employee’s perspective, they are not overly restrictive or draconian. They are crystal clear about the boundaries, and where conduct outside the workplace perimeter has an impact and consequences within.
Tone too is very important. Rather than framing a policy in terms of prohibitions, explain the strategy and how it can be achieved. Educate about the business voice, and how it differs from the social one.
Finally, bring the policy to life. The education process should be reiterative: reminding and refreshing knowledge constantly until it becomes firmly embedded.
