UK: Social Media In The Workplace: How To Use It To Your Advantage

Last Updated: 31 December 2013
Article by Laura Livingstone

It has been 10 years since Facebook, LinkedIn and Twitter started to become an intrinsic part of our daily lives and since then we have all witnessed the ensuing news headlines about employees being dismissed for a variety of misuse. Types of misuse of social media include inappropriate comments about an employer, posting indecent pictures, leaking an employer's confidential information and "checking in" at social events when employees should be at work, to name but a few.

But what are the key issues facing employers in relation to social media and what controls should an employer put in place to reduce the risk to a business?

Commencement of employment

A recent survey by XpertHR showed that 46% of employers use social media to recruit candidates. Advertising vacancies in this way is a cheap and easy way of reaching a wider audience but care must be taken in relation to data protection. You need to make sure that the advertisement explains how any data will be collected, used and stored.

Gone are the days when an employment contract was conditional upon receipt of suitable/favourable references alone. This is not least because most employers now give only bare standard references which give almost no useful information about the character and suitability of the employee for a particular role. Employers are now making enhanced searches of a candidate's social media profile and making continued employment dependant on a clear search result.

You need to make sure that your company does not use social media to "screen" employees as this may give rise to discrimination or privacy claims. It is therefore important that an offer is made and then enhanced searches are carried out with an indication given to the successful candidate that this is taking place. Consent should be sought if at all possible. The employee should be keen to give their consent if they want to start positively in their new position. A negative reaction to this request may give cause for concern in itself.

It is vital that the correct protection is put in place at the outset of the employment relationship to stop abuse arising. An employment contract should contain:

  • a confidentiality clause – this prevents the employee from discussing company information
  • return of company property clause
  • removal of contact list from social media profile on termination of the contract
  • restrictive covenants preventing an employee from approaching or dealing with customers or working for a competitor
  • restriction on the employee's use of company contacts post employment in social media (particularly LinkedIn or otherwise).

During employment

Employees should be made aware from the outset as to what an employer will permit when it comes to the use of social media in the workplace. Recent case law has shown that a clear policy or code of conduct is essential for establishing misconduct and being able to act on that misconduct. This is not least because in more and more businesses social media is being used as an essential part of marketing/profiling.

A widely publicised policy will minimise any risk and create a uniform approach within the company to any misconduct. This policy should cover an employee's use of social media during working hours and the ownership of business contacts made during the course of employment. Access to social media at work is becoming difficult to control due to the rise in smart phones so a comprehensive policy is more manageable than an outright ban of social media sites.

In March 2010 an employee was found to have been fairly dismissed after her attendance at London Fashion Week was brought to her employer's attention through her Facebook page (Gill v SAS Ground Services UK Limited). However, case law has determined that if the employer starts to monitor an employee excessively and without genuine reason, then a dismissal may be deemed unfair and an employee's claim would be successful. A balance therefore needs to be struck.

Termination of employment relationship

Whilst you may wish to actively encourage the use of social media for some employees for work purposes, issues often arise when an employee leaves the company such as who owns the employee's contacts list and how can the employer have access to this list? These could be made clearer by ensuring that the employee's contract of employment contains the clauses listed above.

A recent case ruled that contact details contained on an employee's social media profile are considered to be the property of the employer, despite being in the name of the employee. The case also set a precedent that injunctions may be granted where former employees try to misuse such contacts post-termination (Whitmar Publications Ltd v Gamage). This appears to be the future so the better protection included in the contract and documentation, the stronger the position for the employer, provided the reason for wanting protection is genuine business reasons. The motives of the employee in these circumstances will, of course, be relevant to the outcome.


Developing and promoting a clear social media policy will not only provide useful guidance to employees but it will also give you reassurance as an employer that any breach of the policy would give you the option to take disciplinary action should you wish to do so. It is important that as an employer you maintain a consistent approach to any misuse of social media and ensure that all employment documentation contains adequate protection for the company. Putting these measures in place will ensure that you can reap the benefits that social media can offer to a company whilst also reducing any associated risks.

Since this area is consistently changing, it would also be wise to keep on top of the latest developments so that you can keep one step ahead of even the most tech savvy employees. If you do not have this kind of knowledge yourself, it may be worthwhile to look into an organisation who might offer some support in this regard. This may prove to be a worthwhile investment since in the long term a lack of knowledge could ultimately cost your business dearly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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