Social media and the employment contract
Many employment contracts nowadays include a social media clause. This provision or clause describes the guidelines and house rules governing the use of social media in the workplace by employees. Strict conditions apply to social media and employment law with regard to privacy. Setting out the use of social media in the employment contract creates clarity. What does such a social media code of conduct look like and what is the role of this clause in the event of dismissal?
Social media and employment law
Social media plays an important role in society. For companies, channels such as LinkedIn, X, Facebook and Instagram are essential for sharing business messages, increasing visibility and maintaining business contacts and relationships. The use of social media in the workplace by employees is also inevitable. And this is not without risk.
What if an employee’s post or message on social media causes damage to the employer? Or what about the consequences of a negative message on social media from a (former) employee after dismissal? Social media in employment law is a growing topic of discussion. It is therefore wise for employers to make clear agreements with employees and to include house rules and rules of conduct regarding social media in the employment contract or staff regulations.
Social media clause
One way to make agreements about the use of social media is to include a clause in the employment contract or to lay down rules in staff regulations or a code of conduct, which are added to the employment contract.
The use of social media by employees is based on freedom of expression and good employment practices. This means that employees are responsible for what they share online on social media with regard to their employer and must assess for themselves whether what they share as private individuals could affect the interests of their employer.
It is virtually impossible for an employer to prohibit the use of social media, as employees have freedom of expression. However, employers and employees can make agreements to protect each other’s interests. These agreements may relate to the use of social media during working hours, but may also stipulate that (former) employees may not make negative comments about an employer online.
What are the risks of not including a social media clause in an employment contract?
The absence of a social media clause can lead to various risks for the employer:
- Reputational damage: Employees may make negative or inappropriate comments about the company on social media, which can damage its reputation.
- Uncertainty in conflicts: Without clear agreements, it is more difficult to address employees about undesirable behaviour on social media.
- Limited legal options: In the event of disputes about social media use, the absence of a clause can weaken the employer’s legal position.
Including a social media clause can limit these risks and create clarity for both the employer and the employee.
How can an employer draw up a social media clause that complies with privacy legislation?
A social media clause is a clause in the employment contract or staff regulations that sets out agreements on the use of social media by employees. When drafting such a clause, the privacy rights of employees, as laid down in the General Data Protection Regulation (GDPR), must be taken into account.
Important points to consider:
- Specify the purpose: Clearly state why the social media clause is being included, for example to protect company information or reputation.
- Limit the scope: Formulate the clause in such a way that it does not go beyond what is necessary for the intended purpose.
- Inform employees: Ensure that employees are aware of the clause and understand what is expected of them.
- Respect freedom of expression: Take into account the right of employees to express their opinions, both during and outside working hours.
It is advisable to seek legal advice when drafting a social media clause to ensure that it complies with applicable laws and regulations.
Social media: privacy
When drafting a social media code or regulations concerning social media in the workplace, an employer must take into account the employee’s right to privacy. Without agreements, it is not permitted to monitor an employee’s use of social media. A code of conduct with rules on the use of social media may stipulate that the employer may monitor social media. However, this is only permitted if it is necessary for the purpose, there is no alternative and the monitoring is proportionate. The systematic monitoring of employees’ social media accounts is not permitted.
What are the legal consequences of monitoring employees via social media without prior agreements?
Monitoring employees on social media without prior agreements may violate privacy legislation and lead to legal consequences:
- Violation of the GDPR: Collecting and processing personal data via social media without consent may be a violation of the GDPR.
- Infringement of privacy rights: Employees have a right to privacy, including on social media. Unauthorised monitoring may be seen as an infringement of this right.
To avoid these consequences, it is essential to make clear agreements about monitoring social media use and to lay these down in a social media clause or code of conduct.
Social media and the relationship clause
Rules on the use of social media can also be included with regard to use after dismissal or termination of employment.
In practice, a social media clause in the event of dismissal or departure of an employee is often linked to the relationship clause. A relationship clause limits the possibilities for a former employee to approach existing customer relationships after leaving the company. A relationship clause may stipulate that the former employee is also not allowed to approach customer relationships or maintain relationships via social media. A fine may be linked to this.
Rules for social media after dismissal
Dismissal is often an emotional event. Especially when an employee disagrees with a dismissal, social media can serve as an outlet. To prevent a former employee from making negative comments, it is possible to include a clause on communication in the settlement agreement. This clause protects the employer’s good name, for example by prohibiting the former employee from making negative comments about the company via social media channels.
Drafting or reviewing a social media clause
Rude or damaging comments by employees on social media can lead to summary dismissal. This must be assessed on a case-by-case basis. However, the employee must be aware that their comments have consequences. By drawing up a code of conduct or social media clause, employees know in advance what to expect if they damage their employer’s interests via social media.
An employment law solicitor at Fruytier Lawyers in Business will be happy to help you answer questions about social media in the workplace. We can also assist you in drafting or reviewing a social media clause for companies.
Authors: Employment law solicitors Judy Sliepen and Myrddin van Westendorp