In recent years there has been a significant increase in the use of social media, providing more opportunities for business advertising and networking. Sites such as Facebook, Google+, Twitter and LinkedIn are now regularly visited by many employees in the work place. Given the benefits that social networking can offer in business and current practice, most businesses are likely to allow such use.
But, with this new way of working comes risk. Legal liabilities can arise from the use of social media by employees (whether for business or private purposes) which can result in expensive litigation. It is increasingly important for businesses to know how this can happen and to prevent problems occurring.
The Risks from Social Media Use
There are many positive aspects to the use of social media in the workplace, such as raising the profile of the brand, attracting new customers, recruiting staff and keeping in touch with existing customers. The risks from an employment law viewpoint may be less obvious, so here are a few of the more serious to look out for.
Discrimination by employees
Employers are vicariously liable for the acts of their employees. This will include liability for discrimination. Therefore, if an employee makes any comments on a social networking site which are considered discriminatory, an employer can be held liable. This can occur even if the employee is not using their employer’s computer equipment.
If an employer takes all reasonably practicable steps to prevent such discrimination taking place, they will not be liable. An appropriate social media policy and guidance for employees on this will be crucial.
An employer’s disciplinary policy should also be reviewed, to ensure that such conduct can be dealt with as a disciplinary matter.
Disclosure of confidential information
Employers are also exposed to the danger that employees may post confidential information online. Employment contracts should be reviewed to ensure they specifically address this issue.
LinkedIn creates many problems for the employer because it effectively creates a list of an employee’s business contacts including, potentially, clients or customers.
Employers may choose to impose controls on the use of LinkedIn, maintaining that contacts remain the property of the employer, imposing express obligations to return information stored on such media on termination of an employee’s contract of employment, and establishing independent databases.
Discrimination during the recruitment process
A survey commissioned by Microsoft in 2009 found that 41% of UK recruiters surveyed said that they rejected candidates based on their online reputations.
As personal information is often disclosed on social networking sites, and can be very difficult or impossible to remove, there is a very significant risk that the information used to reject a candidate amounts to discrimination.
If employers are using social networking sites to research potential employees, and candidates are being rejected for reasons such as their sexuality, religious beliefs or marital status then this is discriminatory. Employers are unlikely to be open about such reasons for rejection with candidates but if this practice were discovered or suspected, without clear evidence of the reasons for rejecting the candidate there is an arguable case for discrimination before an Employment Tribunal.
Data protection during employment
Training on data protection should ensure that employees understand that it is not appropriate to disclose personal data relating to their colleagues on social media sites without their permission.
Loss of productivity
Perhaps the most obvious of risks is that access to social media on the employer’s equipment can lead to reduced productivity. Appropriate performance management processes will then need to be undertaken. If the issue is not dealt with, an employer cannot later choose to dismiss an employee or single an employee out for discipline in comparison to other employees.
Consider a Social Media Policy
To regulate use of social media in the workplace and reduce the risks outlined above, a social media policy is highly recommended. This can normally be added to an existing staff handbook.
The policy should provide guidance and rules for employees. If staff are using social media to advertise the business or to recruit for the business, the policy should provide guidance on appropriate wording and practice. It is recommended that senior members of staff are responsible for keeping track of social media networking tools, such as blogs, tweeting and postings on company Facebook and LinkedIn pages. Disclaimers for comments made by employees in such forums should also be considered.
Many employees are also likely to be engaging in social media activity of a personal nature, which may at times affect their employers’ interests. With employees spending more and more time at work, many employers will accept the use of social networking sites for personal reasons at work. The social media policy should, therefore, also deal with personal use.
A social media policy may typically:
• provide rules for access to social media sites
• remind employees that they must not disclose confidential information or trade secrets on such sites
• remind employees that they must not make derogatory or discriminatory comments about the company or any of its staff or clients
• provide information about the monitoring that the employer may undertake.
For Further Help and Advice – Contact Us
At Backhouse Solicitors, we are a friendly and approachable team of employment specialist solicitors. We can prepare a social media policy for your business, or even a complete staff handbook containing all the policies and procedures that you need. If you would like further advice on the issues surrounding social media usage at work, or you have a problem that you need us to solve, then please don’t hesitate to get in touch with us.