A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
Managing employee social media use during the Christmas party season.
Christmas parties are rarely top of the Christmas list for conscientious HR managers! Historically, the fear of inappropriate behaviour on the dance floor, when the drinks have been flowing since midday, has left HR departments nervous about the contents of their inboxes in the following weeks. As risky, are the implications of the accompanying social media posts; pictures and comments made at the height of revelries revealing the organisation’s workforce not at its best or posts that colleagues might find, at the very least, mildly offensive and at worst, harassing and intimidating. How does a media-savvy employer ensure a season of festive cheer without mishap, damage to their reputation or harassment and bullying claims?
Check your social media policy
This policy is becoming an increasingly important one in the workplace – rarely a week goes by without a story appearing about an individual dismissed by their employer for alleged inappropriate social media use. A robust and detailed policy is crucial to inform and manage employee/employer rights and responsibilities when it comes to social media. It should include the following;
- Clear guidance as to what is prohibited - disparaging comments about the employer and/or colleagues, giving opinions on behalf of the employer when not authorised, revealing sensitive information about the organisation, displaying organisation’s logo or other identifying signage in personal accounts;
- Clear guidance on appropriate conduct;
- A clear link to other policies - this policy should link in with the disciplinary and anti-bullying policies.
Check recent cases
Do not despair when addressing social media issues within the workplace; some of the principles that apply to employee’s behaviour generally remain the same.
The recent case of Forbes v LHR Airport Ltd concerned a post on Facebook by an employee, S. S shared an image on her private Facebook page of a golliwog with the message “Let’s see how far he can travel before Facebook takes him off”. The image was shared with S’s friends including another colleague, BW. Shortly afterwards, the image was shared by BW with F who then complained to his line manager. The issue arising in F’s subsequent claim was whether the post was made “in the course of employment” and so whether the employer was responsible, in legal terms vicariously liable; a phrase used frequently when bullying and harassment are alleged during out-of-work parties etc. The Employee Appeal Tribunal (EAT) stated that when it came to gauging, “in the course of employment” in the virtual landscape, as with the physical landscape, it will be a question of fact for each person.
In this case, the claim of harassment against the employer was dismissed as the original post was posted in non-work time, on a personal account.
One key way to avoid posts being made in working time is to insist that employees are not to use their phones for social media or during work time in the social media policy. This can be a little draconian and while it may limit some problems, the policy must also address the appropriate use of social media when outside work as this is still relative to potential reputational damage.
Check your communication
Communication, as ever, is the key. A well-drafted comprehensive policy is obsolete unless your employees know it exists, know what it says and know where to find it. Training on its contents certainly for managers, if not all the workforce, is also important. A well-timed email before the start of the festive season reminding employees of the need for acceptable behaviour both in the physical and virtual landscape is always advisable.
Given the importance of this issue for HR professionals, Anthony Collins Solicitors can offer the following;
- Social media policy drafting;
- Training sessions on managing social media in the workplace;
- Training sessions on reputational damage within the workplace – a large part of which relates to online activities.
For more information
If you have any further questions, please contact Matt Wort.
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