Facebook has now been around for 15 years and social media is now an ever-present fact of life, radically changing the way we do things. But new technology has brought challenges for employers trying to regulate the workplace and employees unsure of where the new boundaries lie. In this article, we look at three areas where social media and employment law collide.
Social media can be a useful recruitment tool but, employers shouldn’t be using it to vet potential employees
Promoting your organisation or advertising vacancies via social media is one thing but, vetting candidates this way is not ok! Researching a candidate by looking at their online profile is something that surveys suggest the majority of employers currently do. However, this leaves them wide open to claims of discrimination from rejected candidates. A person’s religion, disability or sexual orientation may be all too obvious from images or comments posted online. If there is no clear non-discriminatory reason why a person didn’t get the job, then it may be open to a tribunal to draw the inference of discrimination if it is apparent that the employer was aware of personal information from an online trawl.
Data protection laws require that candidates are told how their personal data will be used, including what vetting and verification methods are used. Employers are not complying fully with their legal obligations if they fail to inform candidates that they look at social media for recruitment purposes.
An employer may be able to dismiss an employee fairly if they abuse social media but, this is not always the case
There are endless ways that an employee can abuse social media, when it comes to their employment. Examples include: spending too much work time on social media sites, using social media to bully other employees, breaching confidentiality or giving away trade secrets online, using the internet to spread dissent among the wider workforce, criticising the employer, its product or customers online, posting material online which indicates misconduct (e.g. photos of them on holiday on days they have phoned in sick) and posting content (e.g. video) which embarrasses the employer or brings them into disrepute either directly or by association.
Despite the extensive potential for bad publicity when it comes to social media content “going viral”, employers need to act reasonably in applying the sanction of dismissal and should not automatically assume that everything an employee posts online which is connected to work has necessarily brought their reputation into disrepute.
In Taylor v Somerfield, an employment tribunal found that an employee was unfairly dismissed for posting behind-the-scenes video of the supermarket on YouTube. It was highly relevant that the video had only received eight hits, Somerfield was not identifiable from the footage and no complaints about the clip had been received from customers.
In contrast, in Preece v JD Wetherspoons plc an employment tribunal held that a dismissal was a fair sanction for a pub manager who had a conversation complaining about two of her customers on Facebook, while she was still at work. The tribunal found the employer’s actions were justified in order to protect its business.
Organisations should have a social media policy for employees
Employees need to know what is expected of them in the workplace and what activity their employer deems acceptable and unacceptable, otherwise they can not be fairly disciplined for breaching rules. For example, if the employer actually requires social media to be used for legitimate work purposes, are there any special rules as regards confidentiality that apply?
Employers should therefore have a comprehensive social media policy in place and, ideally, have trained staff on its contents.
Such a policy should set out the framework for using social media, both at work and outside of work where content concerns the employer, colleagues or customers. Attention should be drawn to other policies which may also be relevant to social media use such as a bullying and harassment and equality and diversity policies.