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Aged care providers facing pitfalls with staff on social media

20 Jul 2015

This article first appeared at Australian Ageing Agenda

The legal issues arising from staff using social media to bully each other or reveal details of residents and families is increasingly confronting aged care managers, an industry lawyer says.

Aged care staff using social media to discuss incidents at work or share details about clients and families is increasingly challenging aged care providers, resulting in legal issues ranging from privacy breaches to IP infringements and bullying claims.

Julie McStay, head of Hynes Legal’s aged care and retirement living team, told the Nurses in Management Aged Care (NIMAC) conference last week that her practice was seeing at least two to three providers a month with queries on the issue, and this was growing.

A show of hands from the 300-odd delegates indicated more than half of the senior managers in the room had experienced an issue with a staff member and social media in their organisation.

Ms McStay said that issues on social media often arose after an incident or adverse event had occurred in the aged care facility. “It’s human nature for staff to want to talk about it, talk about what’s going on at the facility, even about what management have said or are doing,” she said.

Inappropriate comments on social media could be damaging on several levels for the aged care organisation and could impact individuals’ privacy, Ms McStay said.

The risks increasingly arising from inappropriate staff use of social media included brand and reputational damage, harassment and bullying, workers’ compensation claims, health and safety issues, defamation, privacy breaches, IP infringements, breach of contract and unfair dismissal claims.

A key issue for the aged care provider was ‘vicarious liability’ in which the employer was held liable for their employees’ actions if they had arisen “in the course of, or within the scope of, their employment.”

“For example, if a staff member is using Facebook to bully another staff member, that has a connection to the aged care provider because their relationship is as a result of their employment,” Ms McStay told the Queensland audience.

To mitigate this liability, it was essential that providers could demonstrate they had taken “all reasonable steps” to prevent it occurring, she said.

These steps included having a good social media policy in place, which would outline the parameters for acceptable social media use both inside and outside the workplace. “The lines between what is acceptable or not, and between our personal and professional lives, are increasingly blurred on social media, so a good policy helps to clarify that for everyone,” she said.

However, it was essential that providers ensured social media policies were followed, and this required education and training for staff to outline expectations. She said:

“There is really no point having a social media policy if, in reality, your practices are different to what the policy states. You must do what you say you will do. Keep a record of training. Have a good feedback and complaint process. Check that staff are following procedures.”

Ms McStay also said it was essential that providers checked their employment contracts to ensure they required staff to follow policy.

“As with all other areas you need to have procedural fairness, which requires a transparent process, disciplinary action that is appropriate; staff being given the opportunity to respond; ensuring consistency of treatment; and considering the personal circumstances of employees,” she said.

Australian Ageing Agenda was the NIMAC conference media partner