The massive growth in the popularity of social media is creating issues, as well as opportunities, in the workplace. Employees regularly blog, tweet and access LinkedIn, blurring the interface between employees’ work and personal lives.
Employers will have a wide range of attitudes to the strategic importance of social media in their business and correspondingly, a wide range of responses to it.
A wise employer will at least be alive to the potential risks when weighing up an appropriate response.
Anti-discrimination laws can hold employers “vicariously” liable for discrimination by their employees. Where comments are made about another employee online that amount to harassment, liability can arise for the employer, whether or not the employee is using the employer’s equipment.
To avoid liability, an employer may contend that the employee was not acting “in the course of employment” but tribunals apply a very wide test to this concept. The fact that the offending act took place while an employee was not physically at work or acting under an instruction from an employer is unlikely to be sufficient to defeat the claim.
If an employer takes all reasonable steps to prevent the harassment, it will not be liable. Appropriate policies and training should therefore clearly indicate to employees that online behaviour, even outside the workplace, should apply to appropriate standards.
Employers are exposed to the danger that employees may post confidential information online. Employment contracts should be reviewed to ensure that they address the issue specifically.
LinkedIn creates many potential problems for the employer that encourages its use. It effectively creates a list of an employee’s business contacts including, potentially, clients or customers. If the employee leaves, who does that list belong to? Is it still confidential if it is made public in this way?
Employers should impose controls on the use of LinkedIn, maintaining that contacts remain the property of the employer. There should be express obligations imposed to return information stored on electric media on termination of an employee’s contract of employment, and establishing independent databases.
Given the nature of information typically found on blogs and social networking sites, a claim for discrimination is a real prospect if said information in is used to reject a candidate. While a job applicant’s sexuality or religious beliefs would never usually be included in their CV, employers can now gain access to such information with relative ease online.
Most employers would provide a different reason for rejection, but if the job applicant were to become aware of the real reason, a successful claim is likely. More subtly, inferences can be drawn where there is no clear explanation for rejection, and the evidence points to a discriminatory reason.
Digging around on Facebook, will engage the Data Protection Act (1998) as the employer is “processing“ that data.
Part 1 of the Employment Data Practices Data protection code requires that candidate to be given an opportunity to comment on the accuracy of information. Candidates should also be told about the employer’s vetting and verification exercises and the nature of enquiries should be proportionate. Query whether trawling around Facebook will satisfy these requirements?
Loss of productivity
Access to social media on the employer’s equipment in the employer’s time can lead to reduced productivity. If the employer allows access during working hours, it should be very clear about the parameters.
Loss of reputation
Often, the employer’s main concern will be damage to its reputation, but damage will often be speculative and difficult to substantiate. Furthermore, the employee may be using his own equipment in his own time.
An employer’s desire to protect itself may also put it on a collision course with an employee’s rights of privacy and freedom of expression. Section 98 of the Employment Rights Act must be construed in a way that is consistent with the European Convention on Human Rights. If an employer dismisses an employee in breach of those rights, dismissal could be disproportionate and therefore unfair. Private life includes social interaction and the right to develop relationships with others, even at work.
Governance of business related social media
Blocking access to social media altogether is likely to be unpopular and may mean employers lose out on opportunities.
Key is the introduction of a social media policy. It is important to draw employees attention to the policy and make it clear what the consequences will be if the policy is breached. It is also important to include guidelines, for example:
- Rules about accessing social media at work; when and for how long?
- Information about what monitoring may be undertaken by the employer and the uses to which the results may be put;
- A reminder to employees not to disclose confidential information; derogatory or discriminatory comments about colleagues or clients whether in or out of the workplace;
- A requirement that a disclaimer is used on blogs, twitter etc.
Finally, which team will monitor usage, is it an IT or HR task, will one person or a team be involved? Does monitoring social media usage at all sit appropriately with the culture of the business?
Francesca Wild is an Associate Solicitor in the employment team at TWM Solicitors. Contact firstname.lastname@example.org
© TWM Solicitors LLP 2013 - All Rights Reserved. Information contained in this article and on our website does not constitute legal advice and is provided for information purposes only. Recipients should not act upon it, but should seek legal advice relevant to their own situation.