Social media: A double-edged sword for employers?

The unstoppable rise of social media networks such as LinkedIn, Facebook and Twitter has led to unprecedented opportunities for businesses and their employees to interact with 
a wider audience, to optimise professional networking and to project a positive image of the business. However, such benefits do not come without a price.  Milton Keynes commercial lawyers Maria Gallucci and Nathan Taylor-Allkins take a closer look. 

In 2014, the number of people using LinkedIn in the UK alone topped 15 million. When combined with the statistics of users for Facebook and Twitter (approximately 31 million and 15 million in the UK respectively), the distinction between employees’ work and personal lives is becoming more and more blurred, bringing with it new HR headaches for businesses.

The advantages of active and dynamic social media use by employees are well-known. Encouraging the use of LinkedIn, for example, can provide the business with exposure to a wealth of
business opportunities and development, whilst also being an excellent tool to keep clients and employees informed of current developments.

However, the risks which can arise both during and after the employment relationship, can be difficult to control given the lack of case law on how the courts will apply existing principles to these relatively new issues. Such risks include:
• Employees may post comments online which constitute harassment of another– this can raise potential discrimination issues for the employer through the principle of vicarious liability
• Employees may post confidential information of the business online
• Employees may lose productivity if permitted to use social media sites during work hours
• An employee’s online actions may have a negative impact on the business’ reputation.

In addition to the risks above, social media sites such as LinkedIn create real problems when the employment relationship ceases. On termination, the employee is no longer under an implied
duty of good faith to protect the business’ interest. An employee may therefore feel at liberty to use their LinkedIn contacts and clients however they wish. Employers can take practical steps such as expressly prohibiting the above by including appropriate clauses in the contract of employment such as posttermination restrictions, for example non-solicitation or non-dealing clauses, and confidentiality clauses which endure even after the employment relationship has terminated.

Other advice employers could follow includes:
- Providing policies/guidance to employees on:
* what is appropriate content
* the employer’s specific rules about accessing social media at work, if any; and
* the level of monitoring of social media which will be undertaken by the employer
- Informing the employee that their online posts are public and as such, consequences may follow for inappropriate posts
- Making the employee’s LinkedIn account specific to the business and requiring either the account to be closed on termination or the surrender of the password; and
- Drafting and implementing a specific clause which reinforces the employer’s proprietary interest in professional contacts which the employee develops via social media during the course of
their employment.

The use and extent of a social media policy is unquestionably a difficult balancing act for an employer. There are competing interests that need to be weighed up and evaluated and it must seem to employers that they are fighting a constant battle to keep up with the latest technological developments. However, it is difficult to envisage that social media use will diminish in the near future. Thus it is essential that employment contracts and policies are appropriately drafted and the necessary protection is afforded to the business to meet their particular needs.

For more information

Please contact Milton Keynes employment solicitor Maria Gallucci or company commercial lawyer Nathan Taylor-Allkins, or call on 01908 202150.