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Jessica  Clough
Jessica Clough,
TRAINEE CHARTERED LEGAL EXECUTIVE
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WhatsApp in the workplace = fines for the unwary
12 April 2017

Most employees use social media in the workplace and most employers accept a “reasonable” level of usage by employees. However, it is important for employers to have social media policies in place and that employees are aware of their duty to use social media responsibly, as this recent case investigated by the Financial Conduct Authority shows. 

If you have concerns about social media misuse in your organisation read on:

The facts

Mr Niehaus was a top investment banker at Jefferies International Limited. As part of his role he was privy to client information and confidential details of deals.

Mr Niehaus used WhatsApp on a number of occasions to boast about certain deals and how much money they would make with a personal acquaintance and friend who was also a client of the firm. In the course of his messages he revealed confidential client information and information about a competitor in an attempt to impress his friend. 

When his indiscretion was discovered, Mr Niehaus was suspended and later resigned before the disciplinary process could be completed. 

The FCA carried out an investigation into Mr Niehaus’s behaviour, at which he cooperated and made a full confession about his actions. The FCA decided that his behaviour had been foolish but not motivated by financial gain. Nevertheless, they imposed a penalty fine of £38,198 on Mr Niehaus (reduced from £53,140 for his cooperation) for failing to act with due skill, care and diligence. 

What does this show?

In another recent example, a Bank Chairman lost his job after his daughter published various Snapchat messages from him telling her how bored he was at work.

The FCA Conduct of Business Sourcebook  states that firms should take “reasonable steps to prevent an employee… from making, sending or receiving relevant telephone conversations and electronic communications on privately owned equipment which the firm is unable to record or copy”

This case could also have resulted in a fine for Jefferies International for failing to take reasonable steps to prevent Mr Niehaus’s behaviour. As a result, financial institutions have begun limiting or banning the use of certain Apps, like WhatsApp and Snapchat, from company phones. 

The risks from the misuse of social media are clear, both for the individual and their employer. Despite this, the William Fry’s Social Media Snapshot 2016 suggests that, while 78% of employees use social media during the working day, less than half of employers have a social media policy in place. 

What can employers do to protect themselves?

1.    Have a social media policy

Although Mr Niehaus’s example relates to an FCA regulated company, the misuse of social media applies to all organisations, whatever their field, sector or size. It is important for all organisations to have policies in place to regulate the use of social media by their employees.

Boyes Turner advises on and drafts social media policies for different types of organisations. This includes drafting rules relating not just to social media use in/outside of work but also how social media should be used as part of the employee’s job – data protection, advertising rules - as well as corporate and social responsibility rules.

2.    Review and update your social media policies regularly

Use of Social media is a rapidly developing field with new Apps, devices and attitudes towards the use of social media in the workplace. While 5 or 10 years ago companies might have had policies banning all personal use of the internet during office hours, this is no longer seen as reasonable by many employees, especially Millennials or Generation Y. Don’t get caught out by not having your policies regularly reviewed.

Boyes Turner review policies and workplace rules either as part of an annual review process but also through our Policy Tracker service where we maintain your organisations’ policies and employee handbook. Let us take the hassle out of policy updating.

3.    TRAIN, TRAIN, TRAIN

It is all well and good to have a policy on social media but do you train your people to it? Do you explain to them the pitfalls of posting inappropriate material? Do they know how private posts or tweets can have an impact on their employment?

Boyes Turner is running specific  in-house training courses on the pitfalls of social media for your business managers and your staff. We focus on how office banter and social media posts can have an impact on your business and their employment and what the expected behaviours are when it comes to social media use. Don’t get left behind in this area – training is an effective way of bringing your policies to life and also emphasises the importance the organsiaiton places on compliance. 

If your employees do not know the expectations, how could you successfully defend an unfair dismissal or discrimination case?

4.    Bring Your Own Device To Work policies

There has been a huge increase in employees using their own devices (such as tablets and smartphones) to connect to company IT networks in order to work. A recent survey of UK based Chief Information Officers found that half of the surveyed companies’ IT networks had been compromised that year due to use of personal devices and that only a small proportion of these companies had Bring Your Own Device to Work (“BYOD”) policies in place.

Use of personal devices can create huge IT security problems if not correctly managed so companies should make sure they have BYOD policies in place to cover this use of personal devices.

Boyes Turner can provide you with a BYOD policy tailored to suit your needs. Your policies on social media, BYOD and email/internet use need to be joined up with one clear message – let us prepare and review your policies to ensure both compliance and consistency.

Our Employment Group regularly advises, trains and represents organisations on social media misuse. If you are concerned your organisation’s social media policies are out of step or missing, or if you are currently managing a social media misuse case and want some advice then contact us. For information about our Social Media policies, policy tracker or employment training courses, please speak to us.

Details of our training courses are available on our Employment and HR Training Academy webpage www.boyesturner.com or speak to us via our inbox [email protected] or on 0118 952 7284. We are happy to provide a no-obligation quote.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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