Social Media Policy – An Employer’s Guide

Much like a dress code, internet or grievance policy, a Social Media Policy is a set of guidelines, advice and expectations. A policy outlines how both the employee and the employer will act in certain situations, and may specify consequences if employees do not adhere to the policy. The policy should not normally be a part of the employment contract, but most employment contracts require employees to comply with an employer’s policies.

Having a Social Media Policy provides an employer with a framework. This framework not only supports employees to use social media in a way which benefits the employer, but also supports HR and Senior Management in making decisions should things go wrong on social media.

What's in a Social Media Policy?

The content of your Social Media Policy depends on the other policies you have in place. If you do not have an internet and email usage policy it may be sensible to put these in place or look to integrate them into your Social Media Policy. If you already have a set of policies in place, you should ensure that your Social Media Policy reflects these other policies and vice-versa. For example if your Social Media Policy mentions emails, you should ensure this part either refers to or is in line with your email policy. If your disciplinary policy includes examples of misconduct and gross misconduct, you should consider mentioning social media misconduct within these examples.

The employer’s view on social media will have an impact on the contents. You may want corporate social media use to be restricted to certain individuals and for your employees to avoid mentioning who they work for online. Conversely you may want all of your employees to sign up to LinkedIn or other social media platforms (including their job roles and work email) to engage with customers and to publicise where they work in all they do online.

BPE’s Social Media Policy contains the following information:

• Introduction: why this policy is important and an explanation of social media
  
  
• How to use social media: tips on what to do and what not to do
  
  
• Intellectual Property: make sure to not infringe other people’s brands or content rights
  
  
• BPE’s brand: how and when to use BPE’s logo, email addresses
  
  
• Personal use: make sure you separate personal use from professional use
  
  
• Issues: what to do if colleagues post inappropriately, what to do if anything is posted about BPE which causes concern and what happens if this policy is not followed.

What happens without a social media policy?

Instances where corporate social media has gone wrong are well-documented. HMV, Chrysler and even Twitter have had problems where employees have deliberately or inadvertently used social media platforms inappropriately.

Without a Social Media Policy being in place employers will need to rely on any internet usage or emails policy which is in place to establish the basis for any disciplinary action. If neither of these policies are in place then employers will need to base any actions on implied duties which all employees owe. In a larger employer, if several social media problems happen in a short space of time the response to each incident may be very different in the absence of any guidance (especially when distinguishing between misconduct and gross misconduct).

If dismissals take place in relation to social media activity, defending an unfair dismissal will be more difficult when there is no Social Media Policy.  If past incidents of breach of social media have been dealt with in different ways for different employees, this is likely to make the defence of an unfair dismissal claim even harder.

Why is it important?

Effective use of social media can greatly add to a business’s value and brand. Companies can share information about their work, customers and areas of expertise which may make them far more attractive to potential customers and employees. Existing employees can network with others, staff in recruitment roles can approach candidates and those with designated responsibility can regularly update social media on what the employer is doing.

On the other hand, inappropriate use of social media can massively damage an employer’s reputation, alienate customers and even lead to legal liabilities. In certain circumstances the employer may be liable for content posted by individual employees, even if they are posting in a personal capacity. Social media also provides a platform for issues such as bullying, harassment, victimisation and discrimination as well as leaks of confidential client and/or business information.

In Game Retail Ltd v Laws [2014] the Employment Appeal Tribunal stated that in social media cases the questions which arise will always be fact-sensitive, and laying down general guidance was as such very difficult. Given that the case law provides no general guidance and suggests looking to the facts, the fact that the situation was dealt with by reference to an existing set of guidance (contained within a Social Media Policy) is likely to assist the employer’s case.

Indeed, in several cases the fact that a Social Media Policy was in place has already had an impact, both good and bad for the employer. In Ward v Marston’s, the employee was reminded that whilst he had not seen a copy of the Social Media Policy he could not claim to be unfamiliar with the idea or content of such a policy. The employee had been validly dismissed.

In Walters v Asda the employer had not taken into account the fact that the actions taken by the employee fell into the ‘misconduct’ category rather than gross misconduct in its own policies.  Because of this the employee was found to have been unfairly dismissed.

Although not specifically a social media policy case, in Atkinson v Community Gateway, where an employee had drafted an email policy himself and had subsequently failed to comply with its provisions, the employee’s argument that he should have a right to privacy when it came to overtly sexual emails he had sent found short shrift with the Tribunal.

Social Media Policy: An Expert View

BPE’s Social Media Policy was drafted as a joint exercise involving expert input from BPE’s Marketing, IT and HR departments. To help bring these areas together effectively, BPE consulted with Luan Wise, a social media expert who works closely with businesses of varying sizes helping them to optimise their social media engagement.

Luan’s view on social media policies is:

"A social media policy is essential, and I'm always amazed at how many organisations do not have one in place. It doesn't need to be long or complex, but it does need to exist!

With social media being so freely available, the line between personal and professional use can become blurred. And unlike some other marketing channels, use of social media cannot and should not be the sole responsibility of a marketing department; input to content being posted needs to be provided from across an organisation and in turn employees can really help in terms of getting messages out to networks.  

Having an internal discussion about what is and what is not deemed suitable for posting on social media is the best place to start. Employees need to see examples as it's very difficult to rely on 'common sense'. Most importantly, a social media policy needs to be embedded with training to ensure that everyone has the opportunity to discuss, understand and learn about the benefits social media can bring to a business." 

If you have any questions, would like any advice on a social media policy or other issue feel free to contact the employment team on employment@bpe.co.uk

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.