Can your business protect itself against comments made on Twitter, Facebook, or YouTube? Can you keep an employee’s LinkedIn contacts?

Here are the top 5 rules you may not know:

1. Using social media to select during recruitment may give rise to claims

Recent statistics show that 64% of recruiters have rejected an applicant after viewing their social media profile. This makes a claim for discrimination a real prospect if information, for instance about a job applicant’s sexual orientation or religious belief – easily found on social media – is used to reject them. Where there is no clear independent explanation for the rejection, it may be open to a court to draw an inference of discrimination.

Further, the Employment Practices Data Protection Code which sets out guidance under Data Protection law, states that job candidates should be told what vetting and verification methods – including online research – have been used. We suggest that few employers will be able to say that they have fully complied with this requirement.

2. It is possible to protect your staff’s LinkedIn contacts

The courts have recently supported businesses trying to keep control over connections made by staff during their employment. In East England School CIC v Palmer, a case involving a recruitment agency, the fact that information about key contacts was widely available on LinkedIn and elsewhere on the internet did not affect the enforceability of the non-poaching restrictions in the employee’s contract of employment. In fact, the court said that the fragility of the relationship between a recruitment agent, its customers and candidates made the restrictions more rather than less enforceable.

In another recruitment agency case, Hayes v Ions, the employee migrated his list of LinkedIn contacts to himself on his departure, having been encouraged to set up the account by Hayes in the first place. The High Court held that Hayes had reasonable grounds for considering it had a case for breach of confidentiality in these circumstances.

And in a more recent case, Whitmar Publications v Gamage, the employee was ordered by the High Court to hand over control of the 4 LinkedIn groups she had set up for her employer.

In terms of practical steps, businesses should make it clear to their staff that they expect any LinkedIn connections made in the course of their business to be the company’s property, and insist that all connections are handed over to the company as they are made, and at the end of employment.

3. Private posts by staff can give rise to employment claims

Under the Equality Act 2010 and other legislation, businesses can become liable for the acts of their employees if these are done “in the course of employment”. This means that your business may be liable if there is a link between the offending employee’s work, and what they have said on social media.

As your business may be liable for the comments of your employees, it is important to take steps to prevent these. Policies and training should make it clear what standards of behaviour are expected in and out of work.

4. You can protect against negative comments being made about your business

Obviously, actions for libel could be brought where untruthful and derogatory remarks have been made about your business, but this would usually be ineffective and counterproductive, particularly against low-paid employees.

It is often possible to dismiss employees fairly for this reason, however. In these cases, the number of likely views of the offending content is relevant, as well as previous warnings and training provided to staff.

In the case of Taylor v Somerfield the dismissed employee had made a posting on YouTube which showed colleagues hitting each other with Somerfield plastic bags. The individuals were dismissed for bringing Somerfield into disrepute, and this was found to be unfair. The tribunal was influenced by the fact that only 8 people had seen the video clip.

On the other hand, in Crisp v Apple Retail UK, the dismissal was found to be fair. It was critical to the tribunal’s decision that Apple had made it clear in its policies and training that protecting its image was a ‘core value’, and that posting derogatory comments on social media could give rise to gross misconduct.

Having good policies, and keeping a sense of proportionality would appear to be key considerations here.

5. Privacy does not necessarily affect your ability to dismiss fairly

Employees may claim that their social media postings are private to them, and that there is nothing their employers can do about it. Article 8 of the European Convention on Human Rights enshrines a right to privacy, and Article 10 a right to freedom of expression. Employment tribunals are compelled to apply unfair dismissal law consistently with these rights.

In the case of Preece v Wetherspoons Plc, where Ms Preece was dismissed for making negative comments about some of JD Wetherspoons’ customers, the employment tribunal found that there was no right to privacy as the postings had been directed at 40-50 close friends, and that any interference with freedom of expression was justified in order to protect Wetherspoons’ business.

There needs to be a material connection with the work undertaken by the employee, however. In the recent case of Smith v Trafford Housing Trust, the employee’s anti-gay marriage Facebook comments were seen as quite separate from his work, even though they were in breach of a staff policy to refrain from expressing political and religious views, and had offended a work colleague.

Contact us to find out how we can help you with your social media issues.

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