Social Media in the Workplace
A HandbookFROM £69.00
This book is intended as a handbook for advisers to employers, providing an overview of the various legal issues that can arise in the workplace through the use and application of social media.
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It explains the application of the law to the use of social media in the workplace, providing employers and their advisers with guidance on establishing and maintaining IT and social media policies.
The book also sets out the preventative steps that can be taken by employers to safeguard themselves and their employees from risk. Such risks include employee behaviour via social media that could give rise to disciplinary or dismissal procedures or which might impact on other employees; the need to safeguard data and the extent to which employers are able to monitor social media usage by their employees; and the risks that social media poses in respect of other claims, such as those pursuant to the Protection from Harassment Act 1997.
Recommended reading for solicitors and barristers advising companies, charities, local authorities and universities. It is also suitable reading for in-house lawyers and company secretaries advising on best practice.
- The Social Media and Internet Use at Work: An Overview
- IT and Social Media Policies and Internet Monitoring
- Disciplinary Issues and Investigation
- Whistleblowing and Regulatory Issues
- Analysis of the Protection from Harassment Act 1997 (“PfHA”)
- Cyber-Harassment and Bullying in Employment Law
- Intellectual Property Rights in Social Media
- Controls and Checks on Social Media Presence
- Social Media and Comparative Law
- Future Developments
New Law Journal
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1.01 The current 21st century workplace is a very different environment to that of even a decade ago. The world wide web forms a backdrop to everyday working life. The internet connects us all; social media segues almost seamlessly between personal and professional lives, sometimes with damaging consequences for employer, employee or both. The strength of English common law lies in its adaptability in the face of previously unconsidered behaviour. Since the advent of the world wide web into mainstream usage in the early 1990s English law has adapted to the new challenges produced by this massive new forum. Internet connectivity in the UK has become the norm and communication over the internet by way of email is ubiquitous. Instant messaging and forum posting are also commonplace, as are the
exponentially-expanding social media sites such as LinkedIn, Twitter, Facebook, Instagram and numerous others, with more in use or in development on an ever changing basis. The challenges of this vast electronic system to law enforcement became clear in such fields as money scams (a simple development from old fashioned postal scams), illegal pornography and other obscene materials (dealt with by direct legislation that applied equally to the internet) and, more recently, terrorist activities. However, perhaps the greatest single effect that this vast inter-connectivity has had on the law is in the field of employer–employee relations and the various permutations of that relationship.
1.02 The purpose of this book is to provide an overview of the various legal issues that can arise in the workplace out of the use and application of social media. The main social media platforms remain LinkedIn, Twitter and Facebook, but new entrants are emerging all the time. WhatsApp is overtaking text messaging. Snapchat allows the sharing of photographs which are then swiftly deleted (a potentially significant risk to an employer). Instagram runs the risk of the posting of proprietary material. The focus of this book is on the workplace, though social media permeates just about every area of law. This book will consider the legal ramifications of this interconnectivity in the context of the workplace and the effect on business and employee relations; analyse the application of the law to the use of social media in the workplace; provide employers with guidance as to their IT and social media policies; and provide a guide to professionals and those responsible for employees.
It is important however to bear in mind just how large a role social media plays in the lives of numerous individuals. Whilst this book will touch on issues such as intellectual property and the criminal aspects potentially arising out of social media abuse, it is intended primarily to be a Handbook for employers, particularly those involved in the training and management of staff, and for their advisors. Its focus therefore is on the preventative steps that can be taken by employers to safeguard themselves and their employees from risk. Such risks include employee behaviour via social media that could give rise to disciplinary or dismissal procedures, or which might impact on other employees; the need to safeguard data and the extent to which employers are able to monitor social media usage by their employees; and the risks that social media poses in respect of other claims, such as pursuant to the Protection from Harassment Act 1997. The fundamental message of this book can, however, be encapsulated in the
exhortation to employers to ensure that they have a social media policy in place, which is regularly reviewed, and of which employees are aware.
1.03 Thus, whilst at first glance the effect of social media on workplace relations might seem obvious, a deeper consideration demonstrates that there are numerous potentially identifiable effects. From an employee disciplinary point of view, social media may come into play when an employee is found to have posted derogatory comments about the company on the internet; to have leaked confidential information; or to have behaved in a way that brings the company into disrepute. The latter could include internal behaviour, such as the sharing of inappropriate material via email, or external behaviour such as posts on forums, Facebook, Twitter or other sites, either from an official company account or from a personal account. Different considerations may apply to these circumstances, but the reputational damage to the employer may be the same. Such behaviour might even give rise to vicarious liability for harassment
of a third party against the employer. Social media therefore impacts upon companies and organisations in multifarious aspects, from reputational and customer-focused involvement to internal disciplinary matters.
1.04 Given how embedded social media now is in our everyday lives, it is impossible in a work of this nature to cover every aspect of the law in this regard. As is evident from the title, this work aims to cover the major aspects of social media from a legal perspective arising in the workplace, from an employer-focused analysis. However, as already noted, this work will also touch on other aspects including the criminal and family law, as these may also have relevance to a corporate entity whose employee involves it inadvertently in his dispute in the family or criminal courts. The principal focus, however, is on the primary effect of social media on the employer–employee relationship and its effect on disciplinary and dismissal procedures. As a result, much of this work considers the need for appropriate policies to deal effectively with social media in the workplace, from recruitment through to employment and if necessary
dismissal. It includes consideration of case-law arising out of social media-related dismissal, and useful tips for HR practitioners and employment lawyers involved in such cases. Consideration is also given to circumstances in which an employer may be concerned as to its personal liability for acts of employees in the social media field as well as the need to protect its reputation both against malicious posts and the actions of employees who may appropriate social media accounts for which they have previously been responsible after their dismissal. The intention of this work is to provide detailed and relevant guidance to identified issues,as well as practical assistance for HR and legal practitioners dealing with this ever-developing and highly pertinent area of employment law.
This applies just as much to a repressiveregime unhappy at human rights abuses being exposed or a city solicitorrecorded calling supporters of Liverpool football club “scouse scum idiots” onYouTube and then compounding the error by inviting them on Twitter to “crawlback to your horrible Merseyside home”. Whilst the solicitor in question hasstated that he feels “suitably chastened” , the video and post remain and thenumber of people watching them, or becoming aware of them, grows. Removal ofsuch footage is likely impossible and as a result he will always be tainted bythis association.
It is this permanent nature ofsocial media, and the ease of forwarding, liking or retweeting that media thatmakes it (by whatever platform) such adanger to those who find themselves its unwelcome object. It is as much of adanger to their employers, whose reputation can be affected by their employee’sactions, regardless of whether they take place in or outside of work. The ensuing reputational damage canpotentially undermine a career or years of careful brand development.
Any argument that a post which has since been disseminated was intended to be private is unlikely to succeed: some media can never be private; if you give an interview to a YouTube channel or if the entire purpose of the post is to raise awareness then clearly there is no conceivable argument that the material in that item could be a private communication.
A similar approach is emerging from the case law on social media misuse, where courts appear to be reluctant to accept arguments that the author believed such communications to be “private” owing to relevant privacy settings contained on the social media profile. The approach of the courts appears to be that that any such belief in privacy is a fallacy in light of the ease of re-publication.
Clearly, an employer cannot control its employees’ online behaviour 24 hours a day, seven days a week, just as it cannot so control their “real world” behaviour. However, employers would be mistaken to think there is nothing they can do. The proper aim for an employer is to establish a culture, similar to an anti-discrimination or bribery culture as envisaged respectively by the Equality Act and Bribery Act (both of 2010),whereby employees are made aware of the importance and impact of social media on the business and its most valuable assets: its staff; and the ensuing potential for action to be taken against them.
Whilst misguided acts by an employee, such as those identified above, can never be totally negated, the employer can seek to insulate itself from claims and resultant reputational damage that arise, by constructing schemes, procedures and policies addressing the risks posed and ensuring that relevant action and training is taken.
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