In the time it takes to read this sentence, over 25,000 tweets will have been posted worldwide.
Some of these will be interesting, some amusing and many forgettable, but it’s inevitable that some will be completely misjudged. In a personal context this may lead to social embarrassment, but in a work context the consequences can be far more serious.
First there are the legal liabilities. An employer is on the hook for acts of its employees through the principle of vicarious liability. Claims can include discrimination, breach of confidence, defamation and harassment. Compensation for most of these claims is uncapped.
It should be noted that an employer is only vicariously liable if the wrongdoing is “in the course of employment”. This can be a grey area with social media, but the courts seem to be taking a broad approach. It will be difficult to escape liability for comments made by an employee at home if there is a sufficient connection with work, for example, where the offensive comment relates to a colleague.
Then there are claims by the misbehaving employee. Typically the employee is disciplined for their conduct which can result in claims for unfair dismissal and breach of contract. All of this is in addition to the significant amount of time and money spent investigating, defending and settling such claims.
The most damaging consequences, however, are not usually the legal liabilities. Bad publicity can damage a company’s reputation, as demonstrated by HMV, where redundant employees tweeted about the “mass execution of loyal employees who love the brand”. Ultimately this can lead to a reduction in business and profitability. Fortunately, these days the negative press is quickly replaced with the next news story – although the online record is permanent.
With such wide-ranging consequences from just one careless comment, it’s no surprise that companies are starting to focus on preventing incidents happening in the first place.
Have a social media policy
The best protection is to have a robust social media policy which explains what is and is not acceptable. This may sound mundane, but the courts take it seriously. It will be used to determine whether an employer is vicariously liable for discriminatory acts and whether it was appropriate to discipline the offending employee. The policy must also be tailored to the business; social media is used in different ways in each company, and employees need to be taught what is appropriate in their office.
It is not enough to have a social media policy tucked away on the intranet. To be effective it needs to be communicated to employees – ideally through regular training and signed acknowledgment of the terms. Not only does this ensure that employees understand the consequences of their actions and help avoid incidents in the first place, but it enables the company to take appropriate disciplinary action and defend any claims.
Have an emergency plan
Damage limitation is essential given the speed at which comments are spread online. Usually this means removing the offending comment or asking the employee to do so, although screenshots should be taken to avoid losing evidence. It is also worth lining up appropriate PR support to help manage any fall-out.
We are seeing a significant increase in the number of employment-related social media mishaps. Employers who take the time to prepare themselves will be grateful they did when the inevitable Twitter storm arrives.