UK: Social Media - An Employer's Guide

Last Updated: 17 October 2011
Article by Laura Conway

For the modern business the opportunities arising from social media in recruitment, business development and employee management seem endless. However, with privacy, freedom of expression and data protection issues lurking in the background and savvy employees seeking to personally benefit their careers from the use of such mediums, we are constantly being asked for advice on best practice. ACAS have recently published guidance1 for employers on how to manage the impact of social networking, in light of estimated reports that misuse of the internet and social media by workers costs Britain's economy billions of pounds every year. It therefore seems like an appropriate time to take stock and provide guidance on some of the key issues that have arisen from the rising use of social media in the workplace.

Recruitment

Online business networking sites such as LinkedIn and Facebook's "work for us" application allow businesses to advertise roles and by-pass recruitment consultants to headhunt and approach desirable candidates.

Whilst there is in principle no problem with this businesses still need to be wary of any non-poaching clauses they or their senior employees are subject to and consider whether unsolicited approaches to candidates could have data protection issues. In addition, social networking sites such as Facebook provide the means to screen candidates as part of the recruitment process.

ACAS warns of the risks of discrimination in the recruitment field through exclusion of certain (perhaps older?) candidates if recruitment is solely or mainly carried out online. It is also pointed out that making judgements on an employee from their social networking profile might give rise to discrimination claims - to a candidate it could seem like they were in with a chance until the potential employer logged on to their profile and saw that, for example, they are disabled, or it was apparent that they are gay. Whilst the decision might have absolutely nothing to do with this discovery, in the absence of clearly evidenced objective reasons why the application was not taken further, employers might have difficulties in defending a claim.

Employers also need to consider data protection issues. The guidance from the Information Commissioner's Office is that vetting should be used as a means of obtaining specific information, not as a means of intelligence gathering, and that candidates should be told about vetting that might take place on them and be allowed to make representations where adverse information is recorded about a candidate.

Our view is that such screening methods should be used with caution and continue to assess candidates on objective criteria - be wary of making important recruitment decisions based on someone's personal Facebook profile.

Cause for concern

The use of social media by employees can cause the business problems, whether due to use which is excessive (so called "time theft"), or inappropriate; causing reputational damage and potential abuse of intellectual property rights and confidential information.

The ACAS guidance warns against knee-jerk reactions caused by the speed and permanent nature of social media interactions, which can lead employers to treat online offences more seriously than offences caused in person. A quiet moan about your boss at the pub after work may be of no concern to the employer, but a tweet on Twitter may be closely followed and result in a disciplinary sanction. ACAS advises employers to react reasonably and ask what the likely impact on the organisation is - it may be easy to remove the posting or even post an apology without causing any damage?

We have previously reported on the case of JD Wetherspoons v Miss K C Preece (see the July update), where the Employment Tribunal found the employer acted fairly in dismissing Miss Preece for bad-mouthing customers of the pub on her Facebook page. Conversely, an Employment Tribunal held recently that an employee was unfairly dismissed for damaging her employer's reputation by posting comments in which she referred to her colleagues in derogatory terms and stated "I think I work in a nursery" (Whitham v Club 24 Ltd t/a Ventura). The Tribunal noted that the comments did not specifically make reference to clients and there was not any evidence of actual or likely harm to the relationship with the client, Volkswagen; there had also been no breach of confidence. Interestingly, the employer was also criticised for not investigating Volkswagen's views on the conduct in question.

Bullying in the cyber-playground

ACAS also warns employers to beware of cyber-bullying, for which they can be vicariously liable, and recommends updating bullying policies to cover social media. This is an area where the line between work and play can become blurred as private disputes between workers come to the attention of colleagues and the business. Employers should only become involved if there is an impact on the workplace or an employee's performance as a result.

ACAS encourages employers to monitor electronic activity such as emails and social networking sites if employees report instances of cyber bulling. Employers are reminded that monitoring should be done with the full knowledge of the employee and should only be undertaken where the benefits outweigh any possible adverse impact. A businesses' policy on monitoring should be made clear in its social media/electronic communications policy.

Businesses are also warned by ACAS about the health and safety of employees who fail to take breaks away from their desk - choosing instead to stay at the computer screen and log onto social media sites. The Guidance also highlights the addictiveness of social media which may in extreme cases require specialist help.

Using social media as an investigative tool

Social media can also prove an important investigative tool in managing HR matters, for example when an employee is off sick. If an employee's blog/site is public then an employee will find it difficult to argue that their right to privacy has been breached. The line may get blurred when an employer asks a colleague to snoop on an employee as this could damage the relationship of trust and confidence. Companies should have a clear policy on monitoring, including social media sites.

Employers should, however, remember that they still need to carry out a fair and reasonable investigation, and not take everything they see online at Face(book) value!

Protecting your brand reputation

Whilst social media can assist the rapid rise of a business through "word of mouth" advertising, it can equally cause the instantaneous downfall through a negative posting by a disgruntled employee, or perhaps leaking of confidential information or misuse of intellectual property rights.

ACAS recommends the use of a social media policy that sets out clearly what is meant by defamation and how employees are expected to protect the company or organisation's brand. Senior employees could be required to use disclaimers on blogs to state that their opinion is not that of the company or be prohibited from expressing certain views. However, ACAS warns that employers might be seen as trying to gag employees from expressing personal views if they are over-prescriptive about the use of social media channels.

E-poaching

An area that is ripe for litigation and not focused on in the ACAS guidance is the use of business networking sites such as LinkedIn to develop and potentially poach business contacts. By staying "LinkedIn" to clients after termination, an ex-employee can potentially inform clients where they have moved to without technically being in breach of covenants. The potential for dispute over who a contact belongs to and whether it amounts to confidential information or is in the public domain is huge. Employers should consider policies which restrict employees from adding clients to LinkedIn profiles (although this may not be conducive to business development) or require these to be deleted on termination.

Comment

The key message in the ACAS guidance is to have a clear social media policy for employees and managers setting out clear guidance on all of the areas discussed with links to disciplinary and bullying policies. The use of such a policy was a key factor in the Employment Tribunal finding in favour of the employer in Wetherspoons.

Employees should be consulted on the policy and there should be involvement, if possible, from IT specialists within the business.

Development in this area is fluid, so once drafted the policy should be kept under regular review and updated in line with best practice.

Footnotes

1.The ACAS guidance on social media is available at http://www.acas.org.uk/index.aspx?articleid=3375 .

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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