Care Update: Be prepared to take a strong line on social media

As mobile devices make social media sites accessible at any time, controlling usage of the likes of Facebook and Twitter becomes increasingly difficult. For care home operators there are a number of potential problems if staff are regularly using social media whilst at work – and at home.

Firstly, because access to these sites is now not restricted to sitting at computers, where it may be easier to monitor, but more often through personal mobile phones, there is the danger that staff could be easily distracted, focusing more on social updates than on the needs of those they are caring for. Clearly in these instances there would be the scope for standards of care to drop.

Another issue is the danger of defamation – making adverse comments about the care home could be hugely damaging to reputation.

Added to that is the possibility that careless comments may infringe the privacy of residents. A further potential area for trouble is that derogatory chat about a work colleague could end up subject to a constructive dismissal or discrimination claim by the member of staff affected.

The potential for misuse of the channel by staff cannot be overstated. As an employer you need to be well prepared to deal with inappropriate use of social media by employees. As with many things, the best approach is to take action before the problem arises.

Setting precedents

There have been several landmark cases over the years where employers have dismissed staff on the basis of their use of social media. In a case against bar operator, Wetherspoons, they were found to have been justified in dismissing a duty manager whose inappropriate comments on Facebook about customers were seen by the one of those mentioned. The fact that Wetherspoons was cleared was largely because they had excellent documentation which made it clear that the use of Facebook in a defamatory way was a disciplinary issue, entitling them to summarily dismiss an employee.

By contrast, in another case, Whitham v Club 24 Ltd, the dismissal was found to be unfair. Ms Whitham had posted comments on Facebook about her colleagues and working conditions, and some of her “friends” included some colleagues and superiors who saw the posts. Ms Whitham made these comments outside of working hours, using her own pc and her employer’s name was not mentioned.

There were no complaints made as a result of the posts and no evidence that there had been any damage caused to the employer’s reputation. The employer was therefore found to have acted unfairly when it dismissed her for making these comments.

However a key factor damaging the employer’s case in this instance was the lack of any internet or social media policy that could be relied upon. Whilst their employee handbook mentioned the use of the internet and of social networking sites, naming Facebook explicitly, it did so only in the context of a breach of confidentiality – which in this case had not happened.

So what should you do if you find your staff are using social media at work – or even at home, when it has an impact on the care home?

Defamation

Where you are faced with potential defamation your first response, prior to commencing legal proceedings, should be to ask the individual who posted the information to remove the content. Where this is not possible, or does not get a result, you should contact the social networking site directly and request that they remove the defamatory content.

If the problem still persists you would need to consider whether to pursue the matter in the courts.

Disciplinary action

The key to being able to take effective action against an offending employee is having in place well drafted policies. It is important that staff understand that they should conduct themselves appropriately at all times, not just during office hours and not just on office systems.

An outright ban?

A complete ban on all types of social media for employees is simply not realistic. It would be far too difficult to police and it would simply be too restrictive and potentially in breach of an employee’s human rights (under the Human Rights Act 1998).

Far better, put in place policies that reach a happy medium, so that employees can use social media freely, but within reasonable limits set by the company, in terms of content and times when social media sites are accessed.

Set the rules

Decide whether to allow access to social networking sites such as Facebook and Twitter during working hours. This is clearly much more difficult to police and enforce when social media is being accessed via a mobile device rather than a PC in the work environment, so ensure this is there is no area for doubt.

If your staff has access to work computers, then personal use may be allowed during lunch hour or breaks. If use of a particular site, such as Facebook, is banned then this must be made clear in your Internet policy – together with the consequences of using the site. If you intend to randomly monitor Internet usage on work PCs then again it is essential that you make this clear in that policy.

Social media usage out of working hours

A well drafted policy can help by addressing the use of social networking sites or blogs out of hours and making staff understand that when they post content on the internet that could identify them or their employer, they should do so in a manner that is consistent with their contract of employment. Staff should be made aware that if their out-of-work activity causes potential embarrassment, or detrimentally effects your home’s reputation, you are entitled to take disciplinary action and the employee may be dismissed.

A good policy that is properly communicated to the workforce can make any disciplinary process far easier, less risky and less controversial in the workplace.

Practical Pointers

• Make sure you have well defined internet, email and social media policies which cover usage both in and outside of the workplace, whether or not on an employer’s equipment. Such a policy should outline what disciplinary action may be taken and whether this includes summary dismissal.
• It is important that the policy establishes afair and proportionate process for monitoring online activity and that staff are aware of this. Once established, you must ensure the policy is clearly followed and enforced. It should be made available to all staff and appropriate disciplinary action, in accordance with the policy, should be taken in the event of its breach.
• Your disciplinary policy should make it clear that a breach of your policies will amount to gross misconduct and may entitle you to summarily dismiss an employee.However, do not forget that you still need to go through a fair procedure before dismissing an employee even for gross misconduct. This means an investigation will need to be carried out and a hearing held with the employee before a decision whether or not to dismiss is made.
• Disciplinary action should only be taken where there is genuine evidence of damage, whether to the employer/employee relationship or to the reputation of the business.Following a fair assessment of any impact on the business, the type of disciplinary sanction should also be given due consideration, to ensure it is within the band of reasonable responses.
• Once implemented, your social media policy must be regularly reviewed and updated to ensure it remains effective and in accordance with current legislation.
• Let them know – your policies must be made known and readily available to all staff; the staff handbook is the ideal place to refer to them.

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.