by Joanne Hyde, Partner and Head of the Employment Law Unit, Eversheds.
Businesses today find that social media use is no longer the exception, but rather the rule and that the benefits of using social media can be profound. However, as employees continue to embrace social media for both personal and work purposes, it has become increasingly important for employers to be aware of and manage the associated risks.
The recent Labour Court decision of William McCamley v Dublin Bus (2016) (the “Dublin Bus” case) highlighted the necessity of having a social media policy in place to anticipate and reduce the risks associated with such online activities. A comprehensive social media policy can protect a business and it is incumbent upon employers that a social media policy is distributed to employees so they know in advance what is expected of them.
This recent Dublin Bus case involved an employee who claimed he was harassed and victimised on grounds of race and religion by a co-worker via Facebook. An employer in this type of scenario (where an employee is harassed by another employee) can be held directly liable for such conduct. This is known as vicarious liability. A full defence is available to an employer if it can demonstrate that preventative measures were taken before the occurrence of the offending conduct.
The court in the Dublin Bus case concluded that taking action after the event and in response to a complaint does not satisfy the criteria required for the above defence for an employer.
The employer here had a policy against harassment and sexual harassment at work in place at the time. However, it did not contain a provision specifically directed at preventing harassment through the use of social media. Fortunately, there was a company rule in place which prohibited conduct “…prejudicial to the reputation and welfare of fellow employees.”
The court stated in its decision that although the company rule may not be an adequate substitute for a well-defined policy against the use of social media as an instrument of harassment, it was nonetheless a comprehensive provision directed at protecting employees. On that basis, the court found that the employer could avail of the above defence.
Lessons Learned – Priorities for a Strong Social Media Policy
This decision places a spotlight on the potential liability employers are open to and the necessity of having a strong and effective social media policy in place.
The permitted and prohibited uses of social media in the workplace should be clear to employees, both during and outside of work hours. In addition, it should be clear to employees that inappropriate use of social media may result in disciplinary action including possible termination of their employment.
In order to create a strong and effective social media policy, the following priorities are useful to keep in mind:
1.Clarify the distinction between an employee’s personal use of social media and his/her use of social media in a professional forum;
2.Communicate to employees why a social media policy is required and the potential risks that exist with the use of social media in their personal capacity, for example, the unintentional release of confidential information;
3.Clarify the types of social media that employees can engage with during working hours, if any, and the appropriate times for them to do so i.e. lunchtime and breaks;
4.Clarify the limitations on an employee’s use of social media outside of working hours (i.e. before 9.00am and after 5.30pm) where that use impacts on the employer, the workplace, other employees, products, customers, suppliers or competitors;
5.Outline the prohibited uses of social media at any time, in particular conduct which may constitute unlawful discrimination, defamation, bullying or harassment, for example, derogatory remarks regarding a co-worker or customer;
6.Remind employees of their responsibilities regarding confidentiality, intellectual property, privacy, copyright and plagiarism;
7.Remind employees of the importance to preserve any relevant social media content where there is an investigation concerning a work colleague and to provide their employer with reasonable access to that content; and
8.Clarify to employees that there can be no expectation of privacy with respect to the use of company property i.e. that the employer has permission to access, remove or delete prohibited content on company property when required.