Social Media and your business: Be proactive not reactive

Chances are your employees are sharing a photo or thought as one of the 1.79 billion active Facebook users, engaging with one of the 467 million LinkedIn members, checking their Twitter account along with 317 million others, or communicating in some way via social media. While the power of social media is widely accepted, and in many cases harnessed, by businesses, many employers have been reactive in addressing the potential risks posed by their employees’ social media interactions. Such risks may include a disgruntled employee making derogatory comments about the business, or one employee bullying another employee, via social media to a potentially unlimited audience.

While an employee may consider such comments to be made in their private capacity, with the increased entangling of private and professional lives, such comments can ultimately be found to have a sufficient connection to the working relationship such that they warrant disciplinary action.

A recent unfair dismissal case concerned an employee who was dismissed for tagging colleagues in an offensive video posted on Facebook, together with an inappropriate comment identifying these colleagues. The Fair Work Commission confirmed that the employee’s conduct extended beyond the private realm into the workplace, and warranted a swift and serious response from the employer. However, in the circumstances of this particular case the dismissal was ultimately found to be disproportionate to the employee’s conduct, warranting the payment of compensation.

What can employers do?

An unfair dismissal claim is less likely to be successful if the employer can show it has a dedicated social media policy that has been widely distributed, read and understood by all employees.

A Social Media Policy should ideally:

• contain an explanation of the difference between employees making representations on social media platforms on behalf of your business and making personal representations. I.e. impose a requirement that employees identify themselves as a Company representative and always seek Company authorisation prior to any work-related posting.
• outline the Company’s expectations around social media behaviour, and what isn’t acceptable conduct. This may include prohibiting the dissemination of any material that could be viewed as obscene, defamatory, embarrassing or intimidating.
• clearly state that excessive amounts of time spent on social media/networking sites during work hours is prohibited and personal use must be kept to a minimum.
• outline the consequences of unacceptable social media use – which may include termination – but should be addressed on an individual basis, with the relevant staff member allowed adequate opportunity to respond to any allegations.

HR Legal can assist employers with developing and implementing an appropriate social media policy, and providing advice to employers on proportionate disciplinary action in the event of inappropriate conduct of employees via social media.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.