UK: Technology In The Workplace

Last Updated: 21 November 2007
Article by Peter Talibart and Paul Griffin

Big brother is watching you

The use of technology in the workplace has become more widespread and so has the potential for misuse and abuse. Recent publicity concerning the use of social networking sites such as Facebook and employees' posting "blogs", has highlighted the issues facing employers as to the use of the internet by their employees. This edition of Employment Highlights looks at the issues facing employers in relation to internet and e-mail use and what steps employers should take to protect their business, but also to ensure good industrial relations.

Face up to Facebook

The Trades Union Congress (TUC) recently warned employers that they need to face up to the age of Facebook (29 August 2007). Millions of employees in the UK are already registered with Facebook or other similar social networking tools such as Myspace, Bebo and Friendster. Individuals conduct part of their private lives online. The difficulty arises when the line between private lives and work lives becomes blurred. The issue of online networking sites raises the following questions for employers:-

  • Should an employer ban the use of such networking sites at work?
  • What should employers do if employees identify their employer on the site?
  • Can an employer be vicariously liable for the comments of an employee?
  • To what extent can an employer monitor both the use and content of such sites?
  • Can employers use social networking sites to carry out checks on potential employees?

Banning social networking sites

The use of social networking sites can cause difficulties both with the demands which it places on IT infrastructure, potentially weakening security systems, but also the potential for "cyber-slacking". A recent survey has suggested that more than two-thirds of London companies have banned or restricted the use of Facebook because employees were spending too much time on the site. Although there is nothing to prevent employers forbidding staff from using social networking sites, a total ban may be an over-reaction. Attempts to clamp down on the use of sites can lead to an erosion of goodwill and suggestions of "big brother" tactics. Employees believe that they spend longer in the office than before and therefore, feel that it is increasingly important for them to have the social tool and link to the outside world. Employees can also argue that they use such sites for business networking. Indeed a City law firm recently had to concede to demands to reinstate access to Facebook after its employees argued that they used it for business networking.

Firms should consider whether a blanket ban is appropriate for their business. In the financial services industry, the security risks of employees accessing Facebook mean that introducing internet filters to prevent staff from accessing sites will be appropriate.

Rather than a blanket ban, the TUC advises that organisations should allow personal internet access use during certain times, such as lunch time. They may be able to ban access at a technical level at other times during the working day. If employers decide to impose such a ban, then they should clarify in a policy exactly what internet use is permitted and the time restrictions on any such use.

Can employees identify their employers on their social networking sites?

Facebook allows users to name their employer and create a network of fellow employees. Some employers may encourage such groups, for example, for graduates who have been appointed but have not yet started in the company. This encourages circulation of information and advice before they start employment. However, it may be more appropriate for employers to encourage such networking through its own website rather than through other social networks.

The difficulty with employees identifying their employers is that if they publish offensive or unsuitable material on the site, the employer's reputation may be damaged. Employees may not even consider that they are identifying their employer but may inadvertently do so by registering using the work e-mail address.

Many of these issues have arisen in relation to blogging. Web blogs or online journals, are becoming very popular. Many businesses have their own corporate blogs and actively encourage their employees to contribute. However, employees may also have their own personal blogs. The use of personal blogs can result not only in employees wasting time at work but also in employees making derogatory comments about their employer or disclosing confidential information. Employees have been dismissed for making derogatory comments about their employers such as an employee at Waterstones who was dismissed for describing his employers in unfavourable terms. However, the resulting publicity of such dismissals usually causes more damage to the company's reputation than the blogs themselves. Blogs may also criticise colleagues online which could result in discrimination and constructive dismissal claims by the "wronged" employee. Employees may also inadvertently disclose confidential information, trade secrets or colleagues' data covered by the Data Protection Act 1998 (see below).

The way to deal with such issues is to have a clear policy specifically relating to blogging as part of a wider internet and e-mail policy. Such a policy can set out the guidelines as to whether an employee may be permitted to name his employer in any such blog or social network website and to restrict use of work e-mail addresses.

Can an employer be vicariously liable for the actions of an employee?

Another difficulty which arises if an employer is identified is in relation to vicarious liability. An employer can be held vicariously liable for some of its employees' actions committed in the course of their employment. The term "in the course of employment" extends beyond acts which the employee is in fact instructed or authorised to perform. An employer may be able to show that any discriminatory or defamatory comments made on a private social network, were not made in the course of his employment. However, this may be more difficult where the views are expressed through a company blog. An employer may have a defence where it can show that it took such steps, as were reasonably practicable, to prevent the employee from making the statements concerned. Any internet policy should, therefore, make it clear that the employee is not to use certain sites or to view, use or circulate any offensive, obscene or discriminatory material.

Can an employer monitor employees' content on e-mail, internet sites or blogs?

The Data Protection Act 1998 (DPA) forms part of the regulatory framework which controls the monitoring of the use of internet and e-mail in the workplace. There are also a number of regulations dealing with workplace surveillance and relevant provisions under the Human Rights Act 1998. The DPA sets out data protection principles which apply to the processing of all personal data. In general terms an employer is entitled to monitor communications (such as telephone, e-mail and internet) if it can be shown that this is relevant to the business.

The Information Commissioner has published codes of practice relating to various aspects of employment practices. Part 3 of the Code of Practice deals with monitoring at work. Monitoring is permissible as long as the employer has identified the purpose behind the monitoring; identified the adverse impact of the practice in place; considered alternatives; taken into account the obligations which arise from monitoring and judged when it is justified. This means that an employer should tell staff in advance what will be monitored. Covert monitoring is not permitted except in extreme circumstances such as investigating criminal activity.

Employers therefore need to balance the monitoring of such networks with the employee's right to have a personal life. The employer should make it clear what it is considered acceptable for an employee to include in any blog or social networking site and also if they monitor the site. The consequences of the employer discovering that the employee has failed to comply with any rules in relation to such sites should also be clear. Advice from the TUC states that not enough employers are being explicit about what they expect from staff in terms of personal conduct when using social networking sites. Any internet policy should set out the standards that are required.

Refusal to appoint employees after checking their Facebook profile

Although employers may find employees' use of Facebook causes difficulty in relation to their reputation and potential for "cyber-slacking", some employers are also finding that this has become a useful means of carrying out pre-employment checks on employees. Many individuals will put both private and personal information which they would not want an employer to know on an internet site where it can be read by anyone. The question is whether an employer should use the site to check the profiles of job applicants. Some HR professionals have felt that checking an employee's Facebook profile is not appropriate. However, individuals can decide what personal information to post on a website. Accordingly, employers are entitled to search against any individual. Facebook has now indicated that it will make the personal profiles of its members available to online search engines. Previously only members or invited friends could see information. In view of this candidates would be well advised to set privacy settings limiting information that is available to potential employers.

The TUC have suggested that cyber-vetting could raise issues of discrimination. This may arise as only a minority of potential recruits will have public profiles on social networks and using such information could give an unfair advantage or disadvantage to certain candidates. Using these sites themselves as a recruitment tool, could give rise to a claim of age discrimination because of the disadvantage to older recruits.

In addition, if an employer based a decision on a poor and untrue 'net rep' (internet reputation) then an employee may be able to bring a claim. Employers should verify any information they find and also take up proper references to ensure suitability for any role.

What should employers do?

Clearly, employers should have in place an internet and e-mail policy which should extend to both the use of social networking sites and to blogging. A well-drafted policy should in any event cover these issues but an employer should check that the policy includes the following:-

  • If employees are to be allowed personal use of the internet, the policy should make it clear the extent of any such use and any restrictions on time. If should be clear that such use should be restricted to lunch or before or after work and not take place at any time which would interfere with the performance of the individual's duties.
  • If employees refer to their employers in personal blogs or social network sites, they should be made aware of any potential consequences, for example, where this could lead to damage to the employer's reputation. A policy should also specify that a work e-mail address should not be used when registering on such sites.
  • It should be clear that any offensive, defamatory, discriminatory or other comments on any social network or blog will result in disciplinary action which may lead to dismissal. In addition employees should be aware that the disclosure of any confidential information about the employer, staff or customers will be forbidden and again could lead to disciplinary action.
  • Employers should make it clear to employees the nature, extent and reasons for their monitoring of the internet.

The internet is a useful tool for most employers, but in embracing the use of the internet employers have to be aware of the potential for misuse and the dangers that accompany it. While a blanket ban may be appropriate in certain cases, employers may have to accept that employees will use the internet for personal purposes, highlighting the necessity to make the rules for such use, and the consequences of misuse, clear.

This publication is written as a general guide only. It is not intended to contain definitive legal advice which should be sought as appropriate in relation to a particular matter. Extracts may be copied provided their source is acknowledged.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions