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Anti-social media: could Facebook and Twitter be risky business?

Gavin Matthews, Head of Retail at Bond Pearce, considers the pros and cons of social media from an employer's point of view.

GENERAL MERCHANDISE

Anti-social media: could Facebook and Twitter be risky business?

Gavin Matthews, Head of Retail at Bond Pearce, considers the pros and cons of social media from an employer's point of view.

Retailers have generally embraced the opportunities of social media. Burberry recently launched its new collection through Twitter as part of London Fashion Week this week and there is talk of F-commerce where Facebook could become a sales channel. It makes sense for retailers to service customers using social media and it’s a great marketing tool but what about the down side of instant communication?

When you view social media through the eyes of any employer, it suddenly seems a little less appealing, or at least slightly more of a mixed bag. As an employer the ability of anyone to communicate instantaneously to hundreds if not thousands of people is more of an issue, especially if you have a disgruntled employee complaining about their lot or inappropriate status updates from a group of your workers.

The TUC has described Facebook users as “HR accidents waiting to happen”.  And not to disappoint, Social Networking sites have created a number of issues for businesses proving the blurring of interaction between work and personal lives is a tricky path to navigate.

Employment Law is an area that evolves on a daily basis. Just like Social Networking if you don’t pay close attention to new developments you can be fast left behind. But how up to speed are you on the modern phenomenas of Facebook, Twitter and Linked In? And, as an employer, what do you need to know?

What’s the big appeal?

So what are the benefits of Social Networking sites to a retail employer?  Well, they obviously provide PR opportunities and tools for sharing information, encouraging cohesion between groups of employees and customers that would not otherwise come together in the same way.  They can improve morale and may lead to business opportunities.  Engaging with modern communication may make also an employer more appealing when it comes to recruitment.

Risky business

There are however a number of risks surrounding the use of Social Networking sites.  Employers can be vicariously liable for discrimination by their employees, even if that employee posts an entry outside of work hours - using their own equipment. As an employer you need to ensure that you have taken reasonable practicable steps to prevent any potential harassment in order to avoid liability.  Practical training sessions, together with appropriate policies, are the best approach to mitigating this risk.  

There is also a risk that employees may post confidential information onto a Social Networking site ie a forthcoming sale or details about customers.  It is important, therefore, to ensure your employment contracts specifically address this issue. 

I spy with my little eye

Use of Social Networking sites to monitor employees or new recruits is also a controversial area.  The Information Commissioners Office has not published specific guidance on the use of Social Networking sites but employers must comply with the Data Protection principles.  In the event that an employer uses Social Networking sites to ‘investigate’ an employee or candidate, they should be given an opportunity to comment on accuracy and be made aware of this vetting.  In addition, the nature of enquiries made should still be “proportionate”.

If you allow employees to access Social Networking sites during work, it is important that clear parameters are set.  For example, “core working hours” does not provide certainty unless it is defined.

One of the key issues with Social Networking sites is that of privacy.  When a Tribunal considers issues surrounding Social Networking sites they have to weigh up the employers need to protect itself versus the employee’s freedom of expression and right of privacy.  A person filmed travelling to work along a street in a public place should have a right to privacy.  However, someone taking part in inappropriate behaviour may lose some of that right to privacy when weighing up the balance of competing interests between employer and employee, particularly if the activity in question relates to the job that the employee undertakes. 

Protection

Like or Unlike, it is important that businesses protect themselves against the possible threats of social media – even if you already have a policy of banning the use of sites.  Contracts of employment should contain specific clauses imposing controls on the use of business orientated sites such as LinkedIn, maintaining that all contacts remain the property of the employer post-termination.  Contracts should also include specific restrictive covenants where appropriate. 

Case law has shown that employers are better protected if they have a Social Media Policy in place.  The policy should set clear parameters about what is and is not permitted.  It should include details about what monitoring may be done by the employer and how results may be used.  It should state the employees must not make derogatory or discriminatory comments about the employer, colleagues or customers and make it clear that breach of policy could lead to disciplinary action. 

Having a Social Media Policy is not, however, enough.  Monitoring compliance and enforcing the policy consistently is also necessary.  All individuals within the company should be trained if only to be informed that “anything you post is public and could have consequences.” Social Networking sites are no longer the sole territory of teenagers.  A case arose just recently where a professional manager posted a derogatory comment about a work colleague. 

Once adequate protection is in place, it is then possible for all retail employers to focus instead on the positive sides of social media and capitalise on all of the creative opportunities that social networking sites provide.


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