More than three-quarters of us use social media at work. That’s more than ever before, and it suggests that the challenges of dealing with Facebook, Twitter, WhatsApp and the rest in the world of work are not going to go away.
Some employers might respond to the news of our social-media use, which is the result of an annual study published this week by the William Fry law firm, with a knee-jerk reaction, banning staff from using social media at work, or banning private use on workplace accounts. But this is unrealistic – and probably undesirable.
Given the ubiquity of social media in managing our lives, you could argue that an employee has a right to consult social media during the working day: to check a child’s Teamer, to arrange to meet friends after work or to keep in touch with family scattered across time zones. Social media has created an expectation of an immediate response, and waiting until the end of the day to check your phone might not be realistic.
Apart from creating bad employee relations and morale, as some studies in the US have shown, banning social media at work without good reason could breach an employee’s rights.
Social-media use might have another function for employees. At the Equality Tribunal, for example, one employee has argued that consulting social media helped to relieve her diagnosed anxiety, by enabling her to relax during her work day. Depriving her of access could have been discrimination on grounds of medical disability.
Preventing workers from using social media may not be in an employer’s interest, either. Some companies may encourage staff to use social media, to build the company’s profile, to attract users to a site or to engage with the public. A popular person’s account can offer a company access to an engaged audience and a way to crowd-source ideas and get feedback. Social-media users expect to interact with real people, not with a faceless corporation. Many organisations have found that using “real people” to converse on their behalf leads to more success on social-media platforms. This is particularly true of “celebrity employees” and in areas such as sport, media, entertainment, news, restaurants and fashion.
So if a ban is neither practical nor desirable, what’s the answer to heavy use of social media? The solution seems to lie in a social- media policy, and this is what William Fry, which sponsored the research, advocates.
But this too is tricky territory. Staff may wonder, and unions or work councils acting on their behalf may question, whether a policy is in the interests of the employees.
As a litigator in employment law who deals with the fallout when contracts and relationships go wrong, I have often seen that policies will protect employees as much as they protect employers.
Policies could be said to be like the rules of a sport: if they are set out and agreed in advance everyone knows where they stand – what is allowed and what is not. It is easier for employees not to cross the line.
If staff are treated unfairly they can use the policies to defend themselves when faced with disciplinary action or threatened with dismissal. Their lawyers or union representatives can ask internal inquiries, statutory tribunals or courts why, if this was such an important issue for the employers, they had never told their employees that they did not allow the use of social media.
In a long-running dismissal case, O’Reilly v Bank of Ireland, where the bank took action against an employee who forwarded allegedly pornographic emails, the High Court noted that the bank had no policy on the issue. Ultimately the court ruled the dismissal to be wrongful and ordered the bank to reinstate the employee and give backpay.
Policies can also help where employees are asked or encouraged to use social media at work and then mix their personal contacts and networks with work-based ones. As with all relationships, employment contracts come to an end, and disputes can then ensue about who owns the contacts.
The question of “who owns your friends” was the subject of legal action in the US when a row over the ownership of Twitter followers became the case of Phonedog v Kravitz. The issue was also the subject of controversy in the UK in 2011, when the journalist Laura Kuenssberg left the BBC to become ITV’s business editor – and took her Twitter followers with her. (She is now back at the BBC, as its political editor.)
So the kind of policy is complex: there are as many potential variations as there are employers. Policies need to be tailored to the type of work, the type of worker and the job performed.
Where employees are dealing with customers on a personal basis, or working on a production line or factory floor, time wasting or customer attention may be a concern. If a restaurant or news outlet fears that the loss of an employee’s Twitter account will deprive it of valuable publicity, then this issue will have to be central to that company’s social-media policy.
From employees’ point of view, they or their unions will need to make sure that they can keep the friends, followers or contacts that they brought into the relationships, and that they can take them with them to new jobs.
Policies also need to be carefully crafted to give the types of legal rights and protections that will stand up if challenged in a court or at the Workplace Relations Commission, which deals with employment-law disputes.
A policy will also need to deal with inappropriate use of social media, such as online bullying or harassment; the disparagement of colleagues or the company; or the revealing of company secrets, whether deliberately or by accident.
Some employers may be more sensitive to reputational harm than others. A case at the Employment Appeals Tribunal last year concerned the dismissal of an employee of a TD for posting on social media that the TD had not actually attended a particular event.
Employees and employers also need to know whether what is posted outside working hours might lead to discipline or dismissal. In the UK an employee working with youth offenders was dismissed when his public-service employer realised that he was very publicly associated with a sadomasochism website. Although the site was not illegal the employer felt that the association compromised its worker’s ability to deal with vulnerable young offenders.
But even a good social-media policy will not solve all ills. Employment relationships, like all others, can end in conflict, dispute and litigation. The law governing employment contracts and relationships is complex – and still developing in the area of social media and the internet. Policies, like healthy eating and exercise, will go a long way to keeping you fighting fit but can’t stop you being brought low by more intractable disputes.
Clíona Kimber is a practising barrister specialising in employment law and the author, with Pauline Walley, of Cyber Law and Employment (Round Hall)
