UK: How To Lose Your Job On Facebook

Last Updated: 16 October 2009
Article by Gagandeep Prasad

The problem

A joke has been doing the rounds recently of a facebook entry where an individual has updated her status on facebook to refer to the fact that she hates her job and that her boss is always making her do "sh*t" work and that he is a "pervy wan**r." She has, however, forgotten that she is friends with her boss on facebook. His comment in response to her entry is that he is gay, she is incompetent and as she is on her probationary period, he sacks her via facebook. Whilst this may be a joke, with the ever growing popularity of facebook, twitter and the like, this does raise interesting issues about what employers can and cannot do in such forums. For example, can employers conduct background searches on potential job candidates on social networking sites like facebook before calling them for interview?

The law

Using such sites for recruitment raises several issues. Firstly, there is the risk of potential discrimination arising out of the age profile of internet users. If employers adopt a policy of online applications only it is likely that many older candidates will be excluded before the recruitment process has even begun. If faced with an age discrimination claim, an employer would have to seek to justify this approach.

Secondly, there is the issue of pre-employment vetting, which is what trawling through these sites on receipt of an application is. This raises both potentially discrimination and data protection issues. For example, there may be information obtained from these sites that relate to an individual's sexual orientation, or religious belief that impact, or are perceived to impact, on the eventual decision whether or not to recruit. Information that impacts on recruitment decisions in this way will be grounds for a discrimination claim.

Thirdly, what about verification? What weight do you place on the information found? Was it placed by the individual themselves, or a disgruntled former friend or colleague? The Employment Practices Data Protection Code (the Code) makes clear that an employer should "not place reliance on information collected from possibly unreliable sources. Allow the applicant to make representations regarding information that will affect the decision to finally appoint". The applicant should therefore be given the opportunity to deal with information that has been found on a social networking site that negatively impacts on any decision whether or not to recruit.

Such searches are effectively pre-employment vetting and the Code states that employers should "only use vetting thing as a means of obtaining specific information, not as a means of general intelligence gathering". This should only be undertaken where there are significant risks to clients/customer, and ideally only late in the recruitment stage, so that not all applicants are vetted routinely. As a matter of best practice, because of the issues that arise, this is a practice that should not be generally adopted.

Social networking sites also raise other issues such as whether or how to monitor employees' use of the internet at work to monitor usage of such sites. Employees have no general "right" to use sites such as Twitter, during working hours. Most employers as a matter of policy allow a limited amount of personal use of social networking sites during the course of the day, but such use will tend to be limited to lunch hours/breaks. If employers will randomly monitor internet usage it is crucial that employees are aware of this.

There is also the issue that employees' facebook use or "twittering" even if outside of work hours can mean that there is damage to the employer's reputation, possible disclosure of confidential information and potential vicarious liability for any discriminatory behaviour by an employee of another employee. All these risks apply even if the employee is twittering outside of working hours.

Employers may be able to take disciplinary action and depending on the specific comments, if they are defamatory, there may also be scope for libel proceedings or seeking an injunction to have the offending comments removed. Any employer action though will need to consider the employee's right to freedom of expression which will arguably cover the ability to complain about work, provided it is not discriminatory, damaging or libellous. There are many complex issues at work here so taking proper advice is key.

Expert advice

  1. In any recruitment decisions if there is any information that has been found about a candidate on such sites, ensure that the Code is complied with.
  2. Have in place a clear equal opportunities policy which sets out the principles by which any recruitment decisions are made.
  3. Consider the internet policy to be adopted and whether access is to be limited.
  4. Consider whether you wish to adopt a Code of Conduct on the use of such sites., for example, setting out the specific internet access that is allowed and the employee in turn agreeing not to bring the company into disrepute or otherwise undermine the employment relationship through the use of any social networking sites.

To do checklist

  1. Draft clear policies to deal with internet usage and the employer's right to monitor internet use. Be clear about what use is permitted. For example, if a particular internet site is not allowed, then details of the ban need to be made clear, as do the consequences of breaching the policy.
  2. If you plan to monitor usage to ensure that the rules are followed, this will also need to be made clear to the employees.

This is an area that is increasingly complex area so take advice.

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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Gagandeep Prasad
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