Someone somewhere once decided that the number of characters in this very sentence were sufficient to change the way the world communicated.

Despite allowing posts of only 140 characters, Twitter has been deemed the source of numerous scandals and major events, including the breach of superinjunctions, the London riots and political revolutions across North Africa. Whether you consider Twitter and other websites of its kind to be a social necessity or a virtual playground for self indulgence, they have certainly had an impact.

Unfortunately for employers, that impact is not always positive. There have been a number of high profile incidents of employees criticising their employers or their clients and then suffering the consequences.  However, a number of employees who were dismissed for usage of social media have had their dismissals overturned by the Employment Tribunal. Employers are understandably keen to prevent these issues arising in the first place and to know their rights when things go wrong.

The Advisory, Conciliation and Arbitration Service (ACAS) has recognised the needs of businesses to protect themselves from the potential impact of reckless social media use by their employees, and earlier this month published guidance notes on social networking in the workplace.

The ACAS guidance recommends that employers should develop a policy specifying the acceptable use of social media by their employees. This should cover the use of internet and emails, smartphones, social networking sites, and blogs or “tweets”. Having such a policy in place can protect the employer from the liability of the actions of its employees, whilst also giving clear guidance to staff and line managers about appropriate use of these sites. 

ACAS recommends that staff should be consulted at an early stage in the creation of any policy, and it should be clearly communicated once it is prepared. They also recommend that staff be given an induction when they first join the business and are then clearly informed of the employer’s expectations regarding social media usage.

Certain businesses, in particular those that handle sensitive information about their clients or rely heavily on trade secrets and confidential negotiations, will also need to consider including stronger confidentiality obligations in their employees’ contracts. Express terms regarding the communication of confidential information on social media sites can protect employers from this potential threat.

The use of Facebook and Twitter gives rise to a number of other issues. Given that smartphones allow immediate access to such sites from anywhere in the world, employers can benefit from flexible working and improved communication both with staff and clients or customers. However, there are real risks that employees spend too long focusing on social networking rather than performing their jobs. Being clear on what behaviours may lead to disciplinary action can cut down the amount of “time theft” suffered by employers.

Cyber bullying has become another new problem for employers that has arisen in the Facebook age. Online posts or Facebook groups can easily target a victim, often without that person even knowing. Employers should take steps to prevent this occurring, by having anti-bullying policies in place and monitoring activity if reports of bullying are made. Thought may also need to be given about the peer group pressure to become someone's 'friend' online, especially with senior members of staff.

Any employers planning to monitor internet, email or smartphone usage should inform and consult with employees prior to doing so, and should weigh up the benefits against any possible adverse impact on employees who may feel that their right to privacy is affected.

Social media can be an effective tool in promoting a brand or communicating with clients or customers, but employers should remain conscious of the risks and have policies in place early. As many Premiership footballers have discovered, once something has entered the “Twittersphere” it is virtually impossible to put the genie back into the bottle. It is therefore vital to ensure that employees are aware of the consequences early, both to discourage such behaviour by employees and to allow employers to take disciplinary action when the policies are breached. 

This article was first published as part of our Employment Law Update - September 2011. To subscribe, please email updates@solts.co.uk.