Social networking can offer many business benefits, but are you doing enough to protect your business from the risks associated with improper use of social media platforms? Asks Ben Collingwood, Employment Specialist with law firm Barlow Robbins LLP.

Twitter, Facebook and LinkedIn log thousands of posts every minute. While most users consider their social networking activities are ‘private’ and they can say what they wish, the boundaries between personal and professional lives can become blurred if they make comments that adversely affect their employer by damaging reputation, leaking confidential information or affecting client relationships. The growing body of case law in this area shows that many organisations have a lot to learn when it comes to understanding, and planning for, the risks associated with employees’ use of social media. An increasing number are finding themselves on the receiving end of unfair dismissal claims and even allegations of failing to protect employees from bullying at the hands of their colleagues.

A recent survey conducted by Barlow Robbins found that most of the organisations we spoke to use social media in the course of their business. However, an uncomfortably high percentage said they have no policy in place for business use (28 percent) or personal use (39 percent). Indeed, amongst smaller employers 75 percent had no formal strategy at all. Furthermore, 79 percent of the respondents said they have not carried out any form of training in the use of social media. This raises serious concerns. Many of these firms will be at risk, not just from the immediate fallout from inappropriate online comments, but from a possible unfair dismissal claim if they decide to discipline an employee for their online activities.

So far, cases in this area have elicited differing results. Observers may be forgiven for feeling confused. However, upon closer inspection, the cases have started to demonstrate some basic principles. Cases where dismissal has been found to be fair have included circumstances where the employee used strong language, made multiple postings, was unrepentant in the disciplinary and, perhaps most significantly, the employer’s social media policy covered precisely the situation which had arisen.

Cases where dismissal has been deemed unfair have included circumstances where the employee made less provocative comments about colleagues or working conditions, was contrite in the disciplinary and, again most significantly, there was no social media policy in place or the existing policy did not cover the precise situation which had arisen.

What is clear from the judgements is that individuals who post on social platforms can have no expectation of privacy and where an employer’s policy is clear and precise on its rules concerning employees’ freedom to comment online, the employer is likely to be able to rely on that policy in order to protect its legitimate business interests and to safely discipline the individual. It may fall to HR to ensure that a policy is implemented to regulate use of social media during working hours and to cover use for the purposes of work and personal use. Rules should be clear and detailed on precisely what is acceptable and what is not. In addition, thought should be given to updating employment contract provisions relating to ownership of social media contacts and how these are dealt with during the operative period of any post-employment restrictive covenants, in order to ensure protection for the employer’s client relationships after the employee has left. While such considerations may seem unusual and even controversial, if they are drafted within reasonable boundaries, an employer should be able to rely on them to protect its legitimate business interests.

It is easy to appreciate the benefits of social media in business and more of us are getting involved every day. However, HR professionals should not sleepwalk into trouble by failing to address the risks to reputation, confidential information and client relationships, particularly when it is relatively simple to put appropriate measures in place to mitigate those risks.