On 1 September 2011 ACAS launched guidance on its website to help UK employers and employees get to grips with cyber issues which are estimated to cost businesses millions of pounds every year.
ACAS’s main recommendation is that employers should consult with staff and trade unions on policies relating to use of the internet and social media websites.
The report advises employers to take a ‘common sense stance’ in regulating behaviour and to try to use the usual standards of behaviour that would apply in ‘non-virtual settings’. Although many employers will already have a general email and internet use policy, the guidance encourages specific provisions in respect of social networking issues. However, it does note that existing email and internet use policies can be expanded upon and adapted to deal with the particular issues raised by social networking.
The ACAS guidance also advises that all social networking provisions should draw a clear distinction between business and private use of social media and, if only limited private use is allowed, then it should be made clear what use is allowed.
Probably the most important aspect of the ACAS guidance is that it offers practical factsheets in respect of what it sees as the five main areas to which this issue relates: managing performance, recruitment, discipline and grievance, bullying and defamation, data protection and privacy.
The factsheets outline some of the most sensitive areas in which social networking sites can present difficulties. For example, whilst it may be lawful for an employer to view a candidate’s public Facebook page during any recruitment process, it must be clear that any decision as to suitability is not based on a discriminatory factor such as disability, sexual orientation or religion. The guidance also contains instructive information on how employers can develop a manageable policy which is both legally compliant and clarifies sensitive areas such as monitoring and the taking of disciplinary action.
It is recommended that employers state clearly in any policies that the posting of derogatory or offensive comments on social media sites (whether done inside or outside of work) could result in disciplinary action up to and including dismissal. Equally, the guidance suggests that the employer should have regard to the context of the actions and whether it is an example of ‘letting off steam’, rather than a case of genuine harm to the employer’s reputation.
It is clear that for many employers where the use of computers is a vital element of the business this is an area which has become increasingly important. A failure to have effective policies surrounding social networking will leave employees unclear as to what sort of use is permissible and may lead to claims for unfair dismissal, in the event that perceived misuse of networking sites is founded upon.
Clearly, many businesses see the advent of social networking as something that can provide assistance from a marketing and business perspective. It is therefore vital that any policy is not drawn up in too strict a manner and still allows employees the opportunity to use social media in a way that is beneficial for the employer.
The guidance can be viewed here.
Just Employment Law will be pleased to assist clients in drafting suitable social media policies where required.