You often hear the statement “you should have a social media policy”.
That is fine in so far as it goes, but it is of little practical use. Rather, the statement should be: “you should have a social media policy that meets the needs of your business.”
To achieve this, I believe there are three stages in your thought process to go through.
Stage One – The Broad Picture
In general terms, you should be asking yourself, what am I trying to achieve?
What you are trying to achieve will depend in part on the nature of your business. Some businesses will want to use social media for a specific business purpose and tie that into their brand. Some will simply want to ensure that their brand is not harmed by the use of social media. Others will be concerned with regulating the conduct of employees during work hours to ensure that there is not a dip in productivity.
Ask yourself, am I seeking a policy for the sake of having a policy?
If the honest answer to that is yes, then it might be time for a rethink. A policy for the sake of having a policy is going to be of little practical value.
Stage Two – The Contract of Employment
The distinction between the contract of employment and a policy is often misunderstood. Employers need to strike a balance between ensuring that the policies are sufficiently in line with the contract, whilst also leaving a clear demarcation between matters suitable for the contract and matters suitable for a policy.
The contract of employment is an agreement between two parties. It creates legal obligations and needs to be drafted in a particular way to create legal certainty.
A policy also needs to be clear, but it can also be more discursive than a contract. It can also be used as a tool to describe what the business is trying to achieve and how it proposes to achieve it.
If it is of sufficient importance to your business, the drafting of a new social media policy might be an appropriate time to review contracts of employment to see whether it genuinely protects legitimate business interests. This is particularly apt for sales teams or those for whom technology plays an important part in the business.
Matters more suited to the contract of employment include:
- Ownership of electronic information and social media
- Identifying confidential information
- Restraint of trade clauses, in some businesses where social media is of particular importance, it may be necessary to draft the clause having regard to the existence of social media
Stage Three – Moving to Specifics
Once you have gone through the two stages above, it is time to think about the specifics of your policy and how you will implement it. In particular, you may want to think about:
- Are you going to take a strict line? If so a) How are you going to enforce it effectively? and b) what effect will the strict approach have on staff morale and retention?
- To what extent are you going to attempt to regulate the conduct of the employee outside work hours? (n.b. the greater the impingement upon an employees non work life, the greater the need for it to be in the contract as opposed to the policy).
- Does the policy link effectively to the contents of the disciplinary policy?
- Do you have an employee representative body? Are you going to seek consensus on the contents of the policy?
- How are you going to disseminate the policy to staff? The mere existence of a policy is unlikely to impress an Employment Tribunal.
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