UK: Social Media: Friend Or Foe?

Last Updated: 19 September 2014
Article by Jonathan Wright and Anna Lewis

For the modern retailer the opportunities arising from social media extend beyond its use for marketing and advertising, with social media being used increasingly in recruitment and employee management. However, with these opportunities come potential pitfalls, such as issues with employee privacy and brand reputation. We set out some guidance on how to successfully use social media in the workplace.

Recruitment

Online networking sites such as LinkedIn and Facebook allow retailers to advertise roles and are a channel by which to reiterate brand image. In addition, employers in general are increasingly using candidates' social media accounts (SMAs) as a means to screen candidates as part of the recruitment process. ACAS and the Information Commissioner's Office (ICO) have both published separate guidance setting out best practice in recruitment to assist employers.

ACAS points out that making decisions or assumptions on an employee from their SMA might give rise to discrimination claims. For example, if retailers consistently hire younger candidates for customer-facing roles in order to propagate a younger brand image and an older candidate applies for a job, it could seem like they were in with a chance at getting an interview for the role until the potential employer logged on to their SMA, saw their age and made a decision that they were too old for the role. Whilst the decision might have nothing to do with this discovery, it is essential that an employer has clear objective reasons for rejecting an application. Without this evidence an employer might have difficulties in defending a claim. 

Monitoring and investigation

Retailers and employers in general are finding social media as an increasingly useful tool in managing their workforces. The ICO advises that employers should ensure they have employees' full knowledge and express permission before carrying out any monitoring of work devices. However, as employees increasingly "follow" or "friend" colleagues, social media has proved to be a helpful investigative tool in managing HR matters. For example, where an employee calls in sick when in reality they are posting updates about how terrible their hangover is. 

Despite any privacy settings the employee may apply to their SMA, there is the likelihood that such information will find its way back to colleagues and managers. Employees have in the past tried to prevent employers using SMAs as evidence in disciplinary proceedings by arguing that it is a breach of their privacy. However tribunals have been rather unsympathetic to this reasoning stating that, as employees cannot guarantee that posts will not be shared more widely, posts are not private and can be relied upon as evidence. This should not be taken as giving you free rein to monitor your staffs' SMAs, but it is a tool that is available to you to garner evidence should you have suspicions about a particular employee and what they have been up to.

Brand Reputation

The use of social media by employees can be hugely beneficial for retailers; however, it can also be inappropriate and cause reputational damage. The pro-active retailer should consider in advance how it will react to such matters.  There have been a number of reported cases examining the reasonableness of employer responses to comments posted by employees on social media. In the case of JD Wetherspoons v Preece, the tribunal found an employer acted fairly in dismissing Miss Preece for bad-mouthing customers on Facebook during working hours as her statements were in the public domain and her conduct had lowered the reputation of Wetherspoons. However, in another case it was found that an employee was unfairly dismissed for allegedly damaging her employer's reputation and relationship with its client by posting comments on Facebook in which she referred to her colleagues disparagingly. The tribunal noted that there was no evidence of actual or likely harm to the relationship with the client. A key point to take away from these cases is the importance of having clear internet use and social media policies in place. It was noted by the judge in JD Wetherspoons v Preece that Wetherspoons was able to rely on the terms of its clear and well drafted disciplinary and social media policies, by virtue of which the employee's activities clearly amounted to gross misconduct. Well-drafted policies will put retailers in a strong position should any issues arise from their employees' use of social media.

Practical tips for effective social media management in the workplace

  • Social media policies - Set out clear guidance on acceptable use of social media both in and outside of work and be explicit about what is allowed during break times, for example away from the shop floor.   Social media and disciplinary policies should be carefully linked.   Social media policies should also provide guidance and inform employees about when the content of their SMA may be relied upon.
  • Training - Staff should be trained on the appropriate use of social media and how it can be used to best reflect the employer's business values.
  • Screening applicants – Approach this with caution. As stated above, you should inform candidates that their SMA is likely to form part of the recruitment process.
  • Think before you act – Brand reputation is key and employers may wish to discipline employees for comments on SMAs if they believe it reflects badly on the business. However it is important to always carry out a proper investigation before taking further steps, for example to discipline or dismiss.  Tribunals have warned against knee-jerk reactions.

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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