Keeping a lid on the social media cauldron

The well-publicised Asda “chicken licker”, who was given a two-month jail term last year after footage of him licking a raw chicken and trashing staff areas while on night shift attracted 10,000 hits on YouTube, was clearly at the extreme end of the employee spectrum.

However, the phenomenon of staff maliciously setting out to damage their employer’s reputation via Facebook or Twitter is a major concern for organisations now torn between clamping down heavily on the online world and exploiting its boundless commercial potential.

Recent revelations over the imposition of a £12 million gagging order on staff at whistleblowing organisation Wikileaks has, not surprisingly, heaped ridicule and accusations of paranoia on an organisation whose defining function is to expose unethical behaviour.

But away from the rash of headlines over celebrity privacy and super-injunctions, employers too are becoming jumpy over the “Ryan Giggs effect”, say leading employment lawyers.

“Like footballers and TV stars, business organisations are becoming extremely sensitive about how they appear on social media networks,” says Sarah Beeby, senior associate at Denton Wilde Sapte, “and while more enlightened managers are actively exploring the benefits of encouraging staff to become online advocates, risk-averse employers are looking at limiting and controlling access.”

“It goes without saying that we have all been taken by surprise by the astonishing growth in online communities, but I would say that far too many firms are only now seeing the risks of not having a specific policy in this area and are desperately playing catch-up,” she adds.

Judging just how far to go in attempting to stem the tide of online comment, gossip or spleen-venting depends both upon the perceived level of risk to an employer brand and the openness of the prevailing corporate culture.

Employer attitudes to social media

At the stricter end of the spectrum is financial services firm Morgan Stanley, which avoids any potential leakage by simply not providing work access to Twitter, Facebook or LinkedIn for certain staff, including all those based in the UK.

In common with many of its rivals, the wealth management and investment firm also monitors, and in some cases pre-vets, staff networking activity in those countries where access is permitted. Both approaches are wholly within the law and reflect the seriousness with which commercial confidentiality is viewed in financial circles.

In contrast, Asda, whose legal casebook includes the successful upholding of the sacking of an employee who used her Facebook account to lampoon customers, is more laissez-faire in its attitude to the web.

Seven years since the firm first began monitoring the internet for mentions, Asda’s “Don’t blog your way into trouble” policy provides both “a safety net and a duty of care framework for staff,” says Dominic Burch, head of corporate communications and social media.

“Although we don’t want to tell our colleagues how to live their online lives, our aim is to warn staff of the potential problems caused by thoughtless blogging and to offer them practical advice on setting up and maintaining privacy settings,” says Burch.

“While other firms may be looking at a clampdown on online usage, we pride ourselves on having staff who are natural communicators and it would make no sense to silence what in many cases are our best brand ambassadors,” he adds.

Damage to corporate reputations

If, some years ago, it was the issue of access to online pornography and other inappropriate content that caused concern for HR professionals, it is now the wilful damage to corporate reputations – think Domino’s and the posting of an online video showing an employee blowing his nose over a pizza – that has caused sleepless nights.

Yet far more common than aggrieved employees settling scores online, argues Tracy Playle, director of social network consultancy Pickle Jar Communications, is “the perennial problem of staff whingeing about work”.

“Everyone slags off their employer from time to time,” she says, “and while this won’t usually do your corporate reputation any long-term damage if it’s done discreetly and among friends down at the pub on a Friday evening, the same comments on Twitter or Facebook will spread like wildfire, might attract the attention of investigative journalists and will of course remain on the web permanently.”

While an outright ban on the use of social media at work by employers that previously permitted it has, she says, “been attempted by a small number of employers and failed dismally”, a more popular tactic is to ban any specific mention of employer names, even on personal Facebook pages.

To Playle, such restrictions are a step too far. “Your employee is a whole person and to attempt to somehow dissociate who they are from who they happen to work for is unacceptable, particularly among younger staff for whom social networks are an essential part of everyday life.”

She adds: “Firms that pursue this line may have an organisational rather than a social media problem.”

Online restrictions on staff

Yet according to Donna Miller, European HR director for Enterprise-Rent-A-Car, imposing restrictions on how staff present themselves online needs to go further: “Our basic advice to employees is not to post anything that may be seen as defamatory to their colleagues, managers or customers, but we also advise them not to link the name of this company to anything that may be viewed as excessive, and that includes extreme political beliefs as well as anything that could be deemed to be discriminatory or otherwise unlawful.”

She adds: “Of course people must be allowed to express their political and cultural opinions and must have a life outside work, but in order to prevent damage to Enterprise, extreme views should never make reference to this firm; either inadvertent or deliberate.”

While many employers use automatic disclaimers to signal that any views expressed online by staff are strictly personal and do not reflect official company policy, they fail to tackle the underlying ethos of digital communications, says Michael Farrier, senior partner at law firm Boyes Turner.

“The problem with everything from emailing to blogging is that it encourages users to be flippant and thoughtless about long-term consequences,” he says.

“When it comes to maligning your employer or their customers online, the biggest problem is that of naïve staff being unaware of the laws of defamation and not being trained to use social media safely.

“My advice to employers is to devise a specific policy around the use of social media – sooner rather than later – and to firmly reiterate that access at work is a privilege, not a right, and one which can be withdrawn if there is abuse,” he adds.

Impact on bad employers

Advocates of social media welcome the positive impact that people power can have in forcing organisations to issue apologies and clean up their act after they have been exposed online. But can the same phenomenon spread to bad employers?

Yes, says David Molian, director of the business growth and development programme at Cranfield School of Management: “If you pretend to be a happy customer talking about their experience online when in actual fact, you’re the customer relations manager, then your sins will find you out and your corporate reputation will undoubtedly be damaged.

“In the same way, if your staff have genuine cause for complaint and you continue to ignore their genuine and legitimate concerns, something will inevitably leak.

“If nothing else, I believe that the prevalence and popularity of social media will inevitably lead to higher standards of corporate behaviour as rogue activity is called to account,” he adds.

Legal considerations

  • While many contracts of employment specifically prohibit the disclosure of commercially sensitive information and bringing the employer into disrepute, employment lawyers argue that social media requires more specific measures that can be updated regularly without a protracted consultation period.
  • The first step is to institute a specific policy on the permitted use of the internet. While work-related online activity may be permissible, for example, anything that results in damage to colleagues, customers or the standing of the firm as a whole will not.
  • Second is to follow it up with a pop-up that automatically flashes up when staff go online; requesting them to read the company’s policy on social media usage.
  • Next stage is to request that staff tick a box agreeing to any specific terms and conditions around usage, such as not being drawn into online conversations about their employer, adding a company disclaimer to any individual posts or not attaching the name of their employer to tweets or blogs.
  • Other measures include banning the use of the company name on personal Facebook or Twitter pages and outlawing updates to professional networking information without prior approval.
  • “Owning” employees’ Twitter or LinkedIn accounts in a bid to quell any rogue postings isn’t unknown in the UK and is legal provided that staff agree to it.
  • An outright ban on all unauthorised use of the web, personal smartphones, digital recording equipment or cameras while at work or on company business would be a last resort and could pave the way for subsequent legal challenges.

For further information, see XpertHR’s 10 social media legal risks for employers.

XpertHR also has a guide for how to deal with an employee who has posted negative comments on a social networking site.

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