Like, love, haha, wow, sad, angry, whichever of the new Facebook buttons best describes your feelings toward social media one thing is certain: social media has changed and continues to change the way we communicate.
Now everything we do can be shared with our very own personal audience. For many employers social media has unlocked the door to thousands of potential new customers. Clever businesses closely monitor likes and dislikes to find out what is trending and how to profit from it (#winning).
So is it all good news? Unfortunately social media in the workplace is not without its pitfalls. Employers have a duty to manage social media use where business interests are at stake. In the realms of social media the distinction between work life and home life has blurred. It is difficult for employers to know if an employee can be disciplined for comments which are damaging to the employer's reputation where such comments are made outside of the workplace. It has been found fair to dismiss an employee for such conduct "so long as in some respect or other it affects the employee, or could be thought to affect the employee, when he is doing his work".
A recent survey by Privilege Home Insurance revealed that 8% of 18-34 year olds had been disciplined or sacked for inappropriate posts, 23% argued with users on social media and 17% left drunken comments which they later regretted. Some employees post offensive comments without a second thought that their employer might be in the audience. Other employees believe that what they post outside of work on their own social media account is unrelated to their work life, freedom of speech and a right to privacy ... right?
Articles 8 and 10 of the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 introduced the right to privacy and freedom of expression and employees often attempt to invoke these rights in relation to online posts. However these rights do not as a rule protect an employee. Employees can only bring a claim for a breach of an ECHR right against a public sector employer and more generally UK courts are required to interpret all legislation against the backdrop of the ECHR.
Even if all privacy settings are engaged on a social media account the user cannot reasonably expect privacy when sharing posts online. The nature of social media means posts are fluidly shared with wider audiences with just a click and so it is not reasonable to expect that only your friend group are in the audience.
It is a common fact that employers will snoop on candidates' online profiles for any red flags during the recruitment process however this form of "facebook creeping" should be exercised with caution. A candidate's profile might reveal protected characteristics such as gender, race, religion, age, sexual orientation or disability (among others) which are not evident in a face to face meeting. Once an employer is aware of this information there is potential for a discrimination claim should the candidate assert that they suffered prejudice as a result of the employer's knowledge of one of these protected characteristics.
Top Tips
How can an employer manage social media use?
- Develop and maintain social media and disciplinary policies and make employees aware of the consequences of breaching this policy;
- Let employees work with you and not against you when it comes to social media by encouraging them to share company news via LinkedIn or Twitter. This will not only broaden your audience, it gives employees an opportunity to be part of, and promote, the brand;
- Adopt a "front page of the Sun" approach: ask your employees to do a quick sense check before posting online by asking themselves: "if this post appeared on the front page of the Sun what would the consequences be?"
- Only check a candidate's social media activity after a face to face interview to avoid prejudging the candidate and to allow the candidate the opportunity to make the best first impression.
Find out more
Katy Wedderburn will be speaking at Change Recruitment's Legal Update – Social Media in Employment Law breakfast seminars on May 18th in Glasgow and June 16th in Edinburgh. For more information on attending, please follow this link.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
