Why is employee advocacy on the rise?

It’s often said that a company’s employees are its most valuable assets. Increasingly, businesses are tapping into their workforce to help promote not only their products and services but their broader image, brand and values in an organic way. This can be invaluable, for example, from a recruitment perspective.

Social media is, of course, the platform of choice for employee advocates in today’s techtopian society. A company’s message and brand are likely to come across more credibly and engagingly from an employee’s social media page than via self-serving “blurb” on the corporate website. Many of your employees might be participating in employee advocacy without even realising it – for example, by posting on Facebook about a work charity day or sharing a work publication on LinkedIn.

Sounds great, but how do we manage the risks?

As might be expected, however, encouraging employees to use their personal social media accounts in a work context creates various potential legal and reputational risks. Fortunately, most of these can be well managed by implementing robust social media policies and providing appropriate training. In broad terms, such guidance should:

• Remind employees that social media activity in the workplace is not necessarily private and may be monitored in accordance with the organisation’s communications and acceptable use policies. 
• Make clear that breaches of workplace policies on social media (e.g. the anti-bullying and harassment policy) will result in disciplinary action. 
• Ensure employees understand how their comments on social media may reflect on the company, particularly where they are acting as employee advocates, and that posts which are damaging to the company will amount to misconduct. 
• Provide information and guidance on how employees should deal with questions or complaints from third parties who contact them directly on social media.

Should we monitor and control the content of posts? 

It can be tempting for employers to try and control the content of employees’ posts by having them reviewed or even drafted by their PR and marketing teams, but a post of that type is likely to lack the authenticity which makes employee advocacy successful. Generally, a better approach is to provide training and guidance to employee advocates on what is appropriate to post online.

Employers may also want to monitor employees’ social media content, both to understand its full reach and impact and to minimise reputational damage caused by controversial posts. There are data protection issues associated with monitoring private social media accounts and the processing of related data. For example, you will need to state in your privacy notice that you will be monitoring and processing such data, and the lawful basis for doing so.

One useful approach is to ask employee advocates voluntarily to share their posts with the company, as well as the analytics, to ensure they get kudos when a post is positively received.

What about non-work-related posts that might reflect on our business?

Say, for instance, an employee advocate comments positively on their Facebook feed about the company’s efforts to raise awareness of mental health in the workplace, but just below the post is a racist cartoon they have liked and shared. What’s the position?

An employer can be held responsible for an employee’s actions which are “in the course of employment”, regardless of whether it knew or approved of the act. On the facts of one recent case, the Employment Appeal Tribunal held that sharing a racist image on a private, non-work-related Facebook page with a list of friends that mostly didn’t include work colleagues, was not done in the course of employment.

Contrast the well-publicised Morrisons case, in which the the Court of Appeal (CA) ruled that Morrisons was indirectly or “vicariously” liable for a rogue employee’s data breaches even though it had taken reasonable steps to comply with its data protection obligations. The CA concluded the individual had been acting in the course of employment because he had been entrusted with the data in question, notwithstanding that the leak occurred at his home, using his own computer, some weeks after he had taken the data.

In the context of employee advocacy, the employee will normally have been asked or instructed to promote the company on their personal social media pages, so it seems likely that postings would be regarded as made “in the course of employment”. Accordingly, employers could potentially be held liable for such posts. As mentioned above, employees who use social media as part of the company's marketing or recruiting activities should be provided with guidelines for appropriate use of social media in their role as advocates.

What if an employee advocate is trolled online by a third party?

Under previous laws about third-party harassment, employers could be liable for harassment by third parties if they failed to take reasonably practicable steps to prevent it and knew that an employee had been harassed in the course of employment on at least two other occasions by a third party.

While these rules were repealed in 2013, the government is currently consulting on whether new provisions on third-party should be introduced. As things stand, it is difficult to see how an employer would be liable for the online harassment of employee advocates by third parties. 

Conversely, it is nonetheless advisable for employers to take reasonable steps to ensure their employee advocates do not harass any third parties on their social media channels. 

What issues might arise on termination of an employee advocate’s employment?
The nature of employee advocacy is such that members of staff engaged in such activity may develop close personal connections with new customers or employees. One possibility is to include appropriate post-termination restrictions (“PTRs”) in relevant employees’ employment contracts, seeking to prohibit them from soliciting customers or employees for a reasonable period after their employment ends.

PTRs should be reasonable in scope, carefully drafted to reflect an employee’s role and seniority and crafted to cover relevant customer and employee relationships. Although the enforceability of these types of clauses is not guaranteed, their inclusion in contracts may afford the employer a degree of protection - even where new contacts have not yet become customers or employees of the company but there is a likelihood they will do so in due course.

So far as potential new recruits and customers are concerned, another step might be to encourage or require employee advocates to direct them, early on in the relationship, to another suitable person within the business.

Are you convinced?

While employee advocacy provides a unique and cost-effective way for companies to promote themselves as a brand and a good place to work, these are to some extent unchartered waters from an employment law perspective. The most important practical measures to have in place are a clear social media policy and specialised training for employee advocates on what is expected from them.