Facing up to Facebook

Over the past few yeas, employers have faced increasing problems arising out of the use of social networking sites and blogs in the work-place.  As a consequence, some employers have banned all use of such sites at work but this can be seen as an over the top reaction.  The sites do have potential advantages for employers – many employees, regardless of age, find social networking sites to be a great way of maintaining relationships with clients and contacts in a quick and informal manner.
This article considers the risks arising from usage and means for reducing those risks.

Pre-employment screening

• Whilst it is not specifically unlawful to use social networking sites as a pre-employment screening tool, such practice is not to be recommended.
• An unfair advantage may be given to certain individuals or groups of individuals, for example older workers are less likely to have online profiles.
• Using social networking sites as a pre-employment screening tool runs the risk of complaints of discrimination from unsuccessful candidates.  For example, a CV is unlikely to reveal someone’s race or sexual orientation, but this information would be apparent from their Facebook page.
• Public bodies risk additional claims of a breach of human rights  – for example that there has been a breach of the right to a private life or right to the freedom of expression if an employer rejects an application because it doesn’t like what its seen, for example, in an individual’s blog.
• In practice, it is probably difficult for the complainant to prove that his online profile influenced the employer’s decision.

Virtual discrimination

• Discriminatory comments posted on a social networking site about a colleague could be used as the basis for a tribunal claim or as evidence of a pattern of discriminatory behaviour.
• Claimants may start to look at social networking sites to try and find evidence of discriminatory attitude by a respondent’s management.  Equally, employers may be able to dig up dirt on claimants to show that they are not quite as innocent as they will want the tribunal to believe.
• An employer can be vicariously liable for the acts or omissions by its employees in the course of employment, whether or not such acts were specifically authorised by the employer.  This is a wide test and the fact that the employee is not physically at work or working under instruction may not be sufficient for an employer to argue that it is not vicariously liable for its employee’s actions. Therefore, an employee using a personal computer outside of normal working hours may still trigger claims for which his employer is liable.

To avoid vicarious liability, employers must show that the employee was acting in his or her own right rather than on the employer’s authorised business.  An employer’s position can be strengthened if it sets out the parameters for use of social networking sites in a well drafted policy.

Monitoring during employment

• Employees may argue that monitoring what is posted on social networking sites amounts to a breach of trust and confidence. Advance notification that monitoring is undertaken cuts this risk.
• Where information from online profile pages is retained by the employer, this information may include sensitive personal data.  Retention of sensitive personal data without express consent amounts to a breach of an employer’s obligations under the Data Protection Act.

Loose lips and sharp tongues

• Social networking sites, such as Linkedin, can be used to develop professional contacts.  Even where the contact list is a mix of personal and professional contacts, case law tells us that that list may still be the property of the employer (see the case of Hayes Specialist Recruitment (Holdings) Ltd v Ions [2008] where a recruitment agent uploaded his employer’s database of candidates to his personal Linkedin account).
• An employer’s confidential information might be disclosed on public forums by an employee who wishes to gain credibility with his online friends. Confidentiality provisions in employment contracts should be updated to reflect online media to ensure that employers properly protect their confidential and sensitive information.
• There have been some fairly high profile instances of employees damaging their employer’s reputation through online comments.  Probably the most well known involved the group of Virgin Atlantic employees who were sacked because of comments made on Facebook.  Among other things, those employees insulted Virgin’s customers, alleged that there were cockroaches on planes and queried flight safety standards.
• Individuals tend to make derogatory comments online when hiding behind pseudonyms.  Companies have been successful in forcing websites to disclose the identity of the person posing behind the pseudonym (see Totalise Plc v The Motley Fool Ltd [2001]).
• Where an employee has disclosed confidential information or damaged his employer’s reputation, this will almost certainly amount to a disciplinary matter.  Ensure that you follow a disciplinary procedure which is in line with the ACAS Code.

Facing up to Facebook

A ‘sensible use’ policy is likely to assist in reminding employees of the potential pitfalls of posting on social networking sites without due care.  Such a policy may include the following:

• Limit the amount or recreational use at work, setting out the time and scope with specific references to social networking sites.
• Notify employees that comments posted online may be public and not private.  They should be reminded of their obligations not to disclose confidential information, say anything derogatory about the company (or its clients), or to make offensive remarks at any time.
• Consider enforcing limitation on access of third parties to online profiles – particularly where employees have contact with children or the vulnerable.
• Clarify that inappropriate social use outside of the work-place and on the employee’s personal equipment could still result in disciplinary action.