'Tis the season' to be careful of social media risks
It is Christmas party time again and this year, despite the economic climate, many employers will be hosting an event for their employees. Christmas parties are a great time for employees to relax, have a good time and perhaps meet colleagues that they do not see on a day-to-day basis.
However, whenever alcohol and Christmas spirit levels are high, there is a risk that not all employees will behave themselves. Taking into consideration the escalation of social media usage, and the fact that most employees will be attending the party with their smart phones in hand, there is a strong likelihood that it will not take very long for arguments, tears or office romances to be shared with the rest of the world. The risk from an employer's perspective is that information and pictures posted online in the public forum will result in discrimination or bullying claims, or damage to the company's reputation. For this reason, whilst many articles attempt to address the potential legal issues arising from the Christmas party, this one focuses in particular on social media risks.
Nobody wants to be the Grinch that stole the Christmas party. However, employers can attempt to avoid green eggs on their face by being alert to the potential risks and by undertaking some forward planning.
Say cheese - the "image" problem
The fact that most employees now have blackberries, i-phones or some other kind of smart phone means that there are an awful lot more cameras around these days to record what is happening at the Christmas bash. Party pictures or videos - the good, the bad, and the downright ugly - have a way of taking on a life of their own when posted online. Employers need to think about the potential problems, which may arise if inappropriate behaviour at the office party ends up, online and what impact this could have on their reputation.
Employees should understand that social media sites are not always going to be considered private. Make sure that your policies reflect the fact that employees should not engage in activities, either in or out of work, which might bring the company into disrepute including making derogatory comments or posting inappropriate or drunken pictures on social media sites. In addition, policies should clarify that posting negative or inappropriate pictures could constitute discrimination and/or bullying. Well before employees get their glad rags on, circulate details of any relevant polices, drawing attention to the fact that these policies apply to what goes on at any Christmas party and afterwards, irrespective of the fact that such gatherings may take place out of the office. Recent cases have highlighted the importance of having well drafted and clear policies in place when it comes to justifying a decision to discipline or dismiss an employee for posting inappropriate information or making derogatory comments on social media sites. If employees know what standards are expected of them, and the implications of failing to comply with these standards, then it will be far more difficult for them to bring grievances or claims in response to disciplinary sanctions imposed. Of course you want employees to enjoy themselves but if you reiterate that workforce expectations on professional conduct still apply, they may think twice about posting that photo of them sat seductively on the boss's lap.
She said what...?! - the "gossip" problem
The prevalence of smart phones also pose a similar but different problem - gossip. A few glasses of mulled wine could be all that it takes for an employee to spill company secrets or badmouth clients or colleagues during a Christmas event on Twitter or Facebook. Additionally, employees may use social media to gossip about things afterwards.
Once again, it is crucial that policies are clear about what is expected of employees if employers want to be able to discipline and/or dismiss without facing potential claims, and also protect employees from harassment or discrimination. Employers should ensure that employees understand what constitutes confidential information, and the fact that disclosure of such information is prohibited at any time including through social media sites. They should also be aware that posting confidential information or negative comments about clients or third parties is also prohibited. Policies prohibiting discrimination, harassment or bullying should expressly refer to social media.
Have you seen his Facebook status?
Production levels often drop in the weeks leading up to Christmas but what should you do if an employee claims that they are ill but Facebook tells you that they are too hungover to come into work, or are off doing some last minute Christmas shopping? Employers should take care not to jump to conclusions. As with any potential disciplinary matter, a thorough investigation is essential before any disciplinary sanction is imposed. A failure to do so could result in grievances and/or claims.
Employers should also be aware that monitoring employees' activity on social media without their knowledge could infringe their right to privacy. Employers will need to consider whether this is the case and if so, be able to justify the interference on the basis that there was a legitimate reason to carry out the monitoring and that it was proportionate.
Wrap it up in red tape?
There is no reason why your employees should not be able to enjoy the Christmas period without you having to wrap it up in lots of red tape and policies. If you make sure that employees understand their social media obligations, you can still see off the year with a festive bang. However, managers should recognise that they are still "on duty" at Christmas gatherings. They should be encouraged to lead by example, adopting an appropriate management style both at the party and afterwards. If managers see inappropriate material posted on social media websites and do nothing about it then employees may think that is alright for them to post gossip or unpleasant images. Finally, employers may wish to think about providing training to employees about what policies say and the standards that are expected of them when it comes to social media.
Nick Robertson head of employment London, law firm Mayer Brown International