To tweet or not to tweet....

Thursday 15 March 2012

Social media in the workplace: to tweet or not to tweet

A simple prohibition of the use of social media in the workplace is not an answer to the social media phenomenon. Instead, employers need to regulate its use in order to embrace its opportunities for their business, says Emmanuelle Ries, Partner at Miller Rosenfalck LLP.

Most employees now have access to social networking sites on their mobile devices so that prohibiting access to social media on work computers is no longer an answer to policing its use in the workplace. Moreover, banning it is not a particularly attractive option in a world where social media can be used to market services and products, and employees are the employer’s best tools to do so.

Digital misconduct

The issue for employers now has shifted from a policing attitude prohibiting the use of social media to a risk and damage limitation strategy promoting a responsible use of social media by employees. A dismissal sanction for digital misconduct, for example, will be looked at by the courts in England and in France along the same principles as ordinary misconduct.

Freedom of expression and right to a private life

Employees have sought to argue that their dismissals on grounds of digital misconduct infringed their fundamental human rights and principles of respect for private correspondence and freedom of speech. In England, the dismissal for misconduct of a manager of a pub following her posting of offensive and rude comments about two costumers on her Facebook page was held to be fair and not to infringe her rights to privacy, even if the comments were visible only to her “close friends” as opposed to her 646 “friends”.

Employees and employers should also note the case of Crisp v Apple where Mr Crisp was dismissed by Apple for having posted comments on his Facebook page commenting on the performance of an Apple product and as such infringing Apple’s social media policy by attacking the Apple brand reputation. Apple has a very complete social media policy stating that ‘disloyal’ comments by employees will be dealt with as misconduct and the dismissal was held to be fair.

LinkedIn contacts and Twitter followers

A newly hired employee can quickly add company clients to his LinkedIn Account and take them away with him on leaving. If a project given to an employee involves building their profile or creating a group, then the contacts will most likely “belong” to the company and accordingly should be “left behind” as company property upon departure. However, this approach may prove difficult from a legal point of view (where for example the employee’s profile contains data that does not belong to the employer) and would be practically pointless if the clients had strong personal connections with the departing employee.

Social media is now an integral part of our work lives and employers need to anticipate issues that may arise and set out their expectations of their employees’ use of social networks at work both in the employment contract and in the staff handbook. Reviewing employment contractual documentation should be an early priority in 2012.

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

Please contact: Emmanuelle Ries – Partner, phone: +44 (0)20 7553 9938, er@millerrosenfalck.com