ACAS issues guidance for employers on social networking

ACAS estimates that misuse of the internet and social media by workers, costs Britain's economy £14 billion a year; research commissioned by ACAS found 55% of respondents admitted accessing social media sites at work. Other risks identified with social networking include workers posting derogatory comments about colleagues and customers, poor productivity and “cyber-bullying”.

ACAS’ guidance advocates consulting with staff and trade unions on what is an acceptable use of social media and what is not. Employers should clearly identify the consequences of misuse, giving examples in their disciplinary and bullying policies of what is unacceptable behaviour and what will constitute gross misconduct.

Other recommendations include giving clear guidance to employees on what they can and cannot say about the company and how employees are expected to help protect the company and/or brand; examining how managers manage performance; educating them to focus on the end-product, rather than managing time too closely; and using the first weeks of employment to establish acceptable standards of behaviour.

The guidance also recommends exercising caution when using social networking sites to screen job applicants. Employers may leave themselves open to the risk of discrimination claims if they use social networking sites to check job applicants as they may obtain information relating to the candidates sexual orientation, ethnicity, age and whether they have children.

ACAS suggests widening bullying procedures to cover cyber-bullying that can take place outside the workplace and working hours. This will protect employers from being held liable for the actions of its employees even if it is away from work and not in working hours.

ACAS also advises employers to introduce a policy on the use of the internet and social media, or develop an existing one. The research recommends taking a "common sense stance" to regulating behaviour and to treat 'electronic behaviour' as you would treat 'non-electronic behaviour'. In other words, bullying on a social media site or posting derogatory comments about colleagues on such sites should be treated in the same way as if those actions took place on company premises. ACAS advise developing a policy to cover the following:

1. Clarity regarding what constitutes business use and private use of social media. If limited private use of internet and emails is permitted, the policy should be clear about what this means.
2. Control of the downloading of software to ensure network security and avoid viruses.
3. In respect of blogging and tweeting, appropriate rules for what information can be disclosed and the range of opinions that can be expressed.
4. Details of the level of monitoring undertaken and the data protection issues involved.
5. Details of the integration of social media tools into the organisation's business objectives and the limits of use in that context.
6. Details of the behaviour that is unacceptable, applying the same standards in virtual and non-virtual settings. Give examples of what might be classed as 'defamation' and the sanctions that will be imposed.
7. Clarify what is confidential and what constitutes intellectual property.

There appears to be no doubt that social networking is here to stay and will continue to develop rapidly. The ACAS guidance is a useful tool for all employers who will, no doubt, increasingly have to manage this new dimension of the employment relationship.

Using social media in the NHS

Many health professionals use social networking. While the use of social media can bring both personal and professional benefits, it can also present a number of risks to healthcare professionals in particular. The British Medical Association (“BMA”) and the Nursing & Midwifery Council (“NMC”) have also provided guidance which help healthcare professionals face the challenges and potential pitfalls that they may encounter when using social media. Many Trusts have also introduced social media policies. Key points from the BMA and NMC guidance include the following advice:

• Healthcare professionals should consider adopting conservative privacy settings where these are available but be aware that not all information can be protected on the web.
• The ethical and legal duty to protect patient confidentiality applies equally on the internet as to other media.
• It would be inappropriate to post informal, personal or derogatory comments about patients or colleagues on public internet forums.
• Healthcare professionals who post online have an ethical obligation to declare any conflicts of interest.
• The BMA recommends that doctors and medical students should not accept Facebook friend requests from current or former patients.
• Defamation law can apply to any comments posted on the web made in either a personal or professional capacity.
• Healthcare professionals should be conscious of their online image and how it may impact on their professional standing.

The use of social media in the workplace can invoke a variety of legal issues including PIDA (whistleblowing), disciplinary, regulatory, DPA and RIPA. We would be pleased to talk to any client requiring fuller advice concerning this developing area of law.