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Aged care providers facing pitfalls with staff on social media

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.

Julie McStay

Julie McStay

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 

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3 Responses to Aged care providers facing pitfalls with staff on social media

  1. Marcia Evans July 17, 2015 at 2:57 pm #

    Policies are vital & follow up of course, but training is also very important. The police have a division that will talk to staff about bullying & there are many who can teach staff about security settings, profiles etc. What an organization shouldn’t do is ban the use of Social Media as people will always find a way round it. Training is far better and can be used to promote the good an organization is doing.

  2. Matt July 17, 2015 at 3:53 pm #

    The problem with social media is that it is not against the law to voice any opinion be it bad or good but when work issues/privacy issues come in to the mix it does make sense to have a policy in place and that the staff are well educated in knowing that there will be action taken if the staff fail to meet the policy.

    I think that communication to staff about the policy would have to be applied on a regular basis as you will get the few that would claim “I was not told about the policy” so it would need to be reinforced to ensure the employer is not at fault from not making all staff clear of the policy.

  3. Maryann Ellis November 4, 2015 at 7:38 pm #

    I have been stood down as l posted a photo of 2 Lovely ladies on Cup Day.
    I had verbal permission for them both – permission from family on the day and documented in the Residents notes – no names were used just the comment – GETTING READY FOR THE CUP – on arrival at the Facility all residents sign a confidentiality release.

    *Photo’s have been posted by Management in Annual Reportwith no documentations to say they were approved by residents.

    Also residents families receive Newsletter & emails with other residents photo’s in it also local Lions News – Local papers never been an issue.

    So why have l been stood down ? Feedback please

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