By Siobhan Fitzgerald, partner at UK law firm TLT (www.tltsolicitors.com)
An employee’s behaviour outside of work is generally of little concern to their employer, however there are a variety of circumstances where behaviour out of the workplace can have a serious impact on the employment relationship.
If out of work conduct impacts an employee’s ability to do their job, impacts key business relationships or could cause damage to the employer’s reputation, then employees could find themselves subject to disciplinary proceedings and potentially even dismissal.
A COMMON PROBLEM AREA
Professionals working in the care sector have to be particularly mindful when it comes to social media; as well as the usual pitfalls, they also need to consider confidentiality and safeguarding requirements. This is not to say that social media use should be discouraged – it can in fact provide an excellent platform to showcase expertise and communicate with others in the sector, as well as providing a personal networking space. There is however a fine line between an employee’s right to a private life and an employer’s right to protect its business.
The proliferation of social media can make it easy for employees to engage in unacceptable conduct (unknowingly or otherwise), but can also make it more difficult to identify where such misconduct has occurred ‘in the course of employment’. The appropriate course of action for misconduct outside the work- place will always depend on the facts of the case, and any policies or instructions issued to employees on social media use will be key.
There have been a number of high profile instances over the years where employees have found them- selves in difficulty over out of work social media use. For example, a British Airways employee criticised the airline on Facebook, and an Apple employee also took to the social platform to criticise an Apple-made app –both were fairly dismissed. There have also been situations where the forwarding of inappropriate content on personal email addresses to work contacts has justified dismissal. There are, however, a significant number of reported cases where dismissals for out of work social media use have been considered to be unfair, for example where there was nothing to identify the employer on the social media account.
IMPLEMENTING A SOCIAL MEDIA POLICY
Cases can very often turn on their own facts, and the extent of the damage caused to the employment relationship will be a key consideration. A well drafted policy setting out appropriate parameters on employees’ personal social media use is the employer’s first line of defence should things go wrong.
A policy should clearly set out expectations for out of work behaviour and the consequences of any breaches. It should also clearly delineate between use of social media for work purposes and private use, and what is expected in each area. An employer may require employees to review their security settings to ensure that only those on their ‘friends list’ are able to see their content, and include any ‘sector specific’ requirements, for example that accepting friend requests from service users is not appropriate as it creates a personal relationship outside of the workplace. The policy should list examples of what the employer will regard as gross misconduct, such as posting derogatory comments about the employer or colleagues online, or posting confidential information.
Once policies have been created, it’s crucial that the information is shared with and understood by all employees. We recommend providing regular updates or even training sessions on what is and is not acceptable. It’s also important to ensure policies are kept regularly up to date to keep up to speed with ever-evolving developments online.
Ultimately, employees need to remember that social media is a public domain and that they are often deemed to be representing the profession and their employer when using it, even if just for personal use. Care workers in particular should maintain appropriate personal and professional boundaries in their relation- ships with service users and colleagues while online, recognising that doing otherwise could have serious consequences.