Social media is one of the most significant developments in communication and has changed the way and speed at which people interact with one another. It has naturally infiltrated the working environment and brought about risks – for employers and employees. It is important to know and deal with these risks, and have effective social media policies in place.

Risks

Risks that could flow from the use of social media includes damage to reputation, confidentially and protection of intellectual property, associated financial risk, harassment or discrimination claims, and IT systems and software damage.

These risks can be mitigated by ensuring that clear and concise policies are in place and are understood by all employees. The seriousness of social media misconduct must also be vehemently stressed as well as the sanctions that will be imposed for non-compliance with the social media policies, which can include dismissal.

Effective social media policies

The social media policy adopted by an employer must be of a practical, reasonable and enforceable nature to ensure that clear guidelines are provided to employees regarding the use of social media for personal and professional usage.

Due to the expeditious changes that occur in the social media realm, it must be emphasised that employers ensure that the policy is not rigid and allows for enough flexibility to cover the employer for all contingencies.

There should be an educational aspect to the policy that imparts to employees the impact of social media on the business of the employer as well as the consequences of misconduct relating to social media. Social media literacy training can be provided and could go a long way towards avoiding the potential risks employers may face due to employees incorrect usage of social media.

Grey areas eradicated by clear social media policies

When it comes to what employees can and cannot do on social media there are many grey areas.

A properly constructed social media policy prevents grey areas on the issue of social media usage, which makes it easier for employees to know what is and isn’t acceptable regarding social media usage. This in turn makes it easier for the employer to regulate employees’ online conduct.

A clear and thorough social media policy is therefore of critical importance. Coupled with this is the need to ensure that employees are aware of the policy, understand what constitutes inappropriate behaviour on social media, as well as the consequences of engaging in such behaviour.

Types of misconduct to look out for

Misconduct can include bad-mouthing the employer, other employees, executives, directors, customers, clients or suppliers; making racist comments; bullying or harassing colleagues; using or disclosing confidential information or trade secrets of the employer; or ex-employees failing to update their online profiles.

Whether such misconduct committed by the employee on social media is committed at work or off duty is essentially irrelevant.

The crucial question to ask is whether there is a link between the employee’s conduct and the employer’s business interests.

If there is and the employee’s conduct has a negative impact on the employer’s business interests the employer will in all likelihood have a fair reason on which to rely to dismiss the employee.

What about employee rights?

Employees have a right to privacy in the workplace.

However this right is far from absolute and there are various instances when this right can justifiably be impaired by the employer. For example employees may be of the perception that private communications between friends by email or other means over the internet aren’t accessible by the employer. This is not the case if the employee makes use of a company laptop/computer as the medium for such communications.

Employees also have the right to freedom of expression; however, this must be exercised within the parameters of the employer’s social media policy. Even the Constitutional Court has confirmed that freedom of expression is not a superior right in South Africa.

Privacy settings offer some protection

Employees must remember that if they use social media pages, such as Facebook, and don’t activate the privacy settings on their profiles then they are deemed to have waived their right to privacy in respect of the posts they make, and these posts will fall wholly within the public domain.

Should an employee thus post a negative comment about his/her employer on Facebook without having activated the privacy settings on his profile, then such comment falls within the public domain and can negatively affect the employer’s business interests and constitute a justifiable ground for dismissal.

The cardinal test operative in the circumstances is “whether the employee’s conduct has destroyed the necessary trust relationship or rendered the employment relationship intolerable”.

Duties placed on the employer

An employer has a duty to provide its employees with a safe working environment.

This duty does not merely require employers to protect employees from physical harm but also from psychological harm caused, for example, by online harassment and cyberbullying. 

In the field of social media employers should therefore take reasonable steps to protect employees from online harassment and cyberbullying committed by fellow employees.

This duty applies regardless of whether an employee is subjected to online harassment or cyberbullying by fellow employees during or outside of working hours.

Should an employer fail to fulfil this duty they can be held vicariously liable for the damage caused to their employee who has been subjected to online harassment and/or cyberbullying by fellow employees.

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