Social Media is becoming increasingly popular; no longer is it just a ‘nuisance’ to employers wishing that employees would do their work rather than waste time ‘networking’ with their pals, the concerns surrounding it reach far wider.

Many businesses are now using social media as a useful business tool, encouraging its use in the workplace to assist in marketing and networking their own business. Of course, some businesses also use it to aid their recruitment drives (a consideration many prospective employees may not have considered!); although this tactic is also not without its pitfalls due to the obligations of a prospective employer under the Equality Act 2010 and potentially the Data Protection Act 1998.

However, it can be very damaging for businesses if employees disclose confidential information, damage an employer’s reputation, infringe intellectual property rights or create liability for discriminatory or defamatory comments through their use of social media. Such actions by an employee could clearly warrant disciplinary procedures which could result in the dismissal of an employee and potentially a claim in the Employment Tribunal for unfair dismissal.

As social media is often used by an employee in their ‘own time’ and outside of the workplace it is questionable whether an employer can take steps to protect its reputation and dismiss an employee without being liable for unfair dismissal and breaching an employee’s right to privacy under the Human Rights Act 1998.

The increasing use of social media has, of course, led to a number of cases on the subject in the Tribunals which have explored this question.

Recent cases demonstrate the value of having tightly drafted policies to send a clear signal about the employer’s expectations for employee use of social media within and outside of the workplace. Not only do the policies become a good ‘aide memoir’ to remind employers how to deal with such issues but should make it clear to employees what actions are not considered acceptable by the employer.

For example the policies should, amongst other things, remind employees that social media activity is not necessarily private and can be subject to disciplinary proceedings particularly if their conduct on line is harmful to the business, for example damaging to its reputation and/or disclosing confidential information etc

Of course, such a policy would also need to tie in closely with the employer’s anti harassment and bullying policy particularly in light of the Equality Act 2010. Under the Equality Act 2010 employers may be liable for discrimination where an employee makes a discriminatory comment about another employee online and this is done ‘in the course of employment’.

If the employer can show that it took all reasonable steps to prevent the employee acting in a discriminatory manner then it may successfully defence this type of claim under the Equality Act 2010. Of course, producing to an Employment Tribunal copies of the employer’s Social Media policy and Anti Harrassment and Bullying policy coupled with examples of how the business police and enforce the policies, will assist in successfully defending any potential claim for discrimination and/or unfair dismissal.

If you have any queries or concerns about your use of social media in the workplace, unfair dismissal and/or the use of disciplinary and grievance procedures, the obligations on an employer or prospective employer under the Equality Act 2010 or any other employment query then please do not hesitate to contact Victoria Pratley or Simonne McIvor.