Social networking for example on Face Book, Linked in and Twitter have changed the way people communicate. With people spending more and more time using social networking and for employees the temptation to carry on at work might prove too much, and prevent them doing as much work as they might but as well as practical problems of employees using social networking sites such as a drop of productivity there are legal issues relating to it that can prove problematic for employers.
Employers can be held “vicariously” responsible for acts of discrimination or harassment by their employees. So where an employee is making discriminatory comments about fellow employees, or for example, making sexual advances to a colleague through social networking it can amount to harassment, and employees in some circumstances could sue there employers, even if it takes place outside of work. To avoid liability, an employer will need to show that the employee was not acting in the course of employment but this is not as easy as it sounds as it is interpreted widely.
Employees who can show that they have taken all reasonably practicable steps to prevent the harassment or discrimination should not be liable. Training employees on such issues and having policies in place will help employers show this. Training should highlight what standards employers expect between colleagues even outside of work.
Confidential information of a business can also be at risk from social networking sites. Employees can easily give information about there work day thinking it innocent information, for example a case of mine where an employee working for in insolvency had Tweeted about going to a meeting in a manner which clearly identified the destination causing his followers to speculate about the financial status of the client. Often customer lists and client details are confidential information belonging to an employer (either contractually or otherwise) and use after termination of employment can be damaging to a business. As a result businesses take steps such as having contract provisions to deal with their ownership of this information. However due to social networking particularly those aimed at the business community, for example LinkedIn, where lists of business contacts are essentially in the public domain there are questions surrounding whether those contacts still covered by a contract or protected when an employee leaves?People tend to think that sites are private however this is usually not the case and many employers use sites to check out employees before they join. Employers need to be aware that this could lead to problems if discovered as the information gained, where it relates to sensitive personal information about an individual such as their sexuality or religion (for example), could lead to discrimination claims by rejected candidates. They are also processing information from the perspective of data protection legislation, and probably in breach of requirements under it.
Employees who go home after a difficult day saying they hate their boss and that their day was rubbish could be damaging the reputation of the employer as many of their social networking friends will know where they work. Additionally colleagues who may be friends on social networking sites may have different views on things being posted and pass information on to others or back to their employer. Damage of this sort is hard to quantify but could be a disciplinary matter in some cases. Employers who want to be able to discipline employees should be explicit and clear about what behaviour is acceptable, and the consequences for not meeting the set standard. Employers need to be mindful of individual’s rights to privacy and freedom of speech, but f employers end up dismissing an employee for matters relating to social networking the question in relation to employment matters (and potential unfair dismissal claims) would normally be whether or not it was fair and proportionate to dismiss the employee in the circumstances, rather than considering the right to privacy.
Employers should review contracts and policies to ensure they deal with the issues and cover the risks. Employers can limit access at work to restricted hours (or completely), and should be explicit about when and which sites can be accessed. Specific policies or additions to existing ones to cover online/social bullying and harassment, and confidential information are advisable. They can include reference to monitoring of use in work. As with all policies having them is not enough. They need to be brought to employee’s attention, and actively used.
For specific queries please contact Victoria Young, employment solicitor at Blocks who will be able to assist with this and any other employment related legal matters firstname.lastname@example.org direct dial 01473 343922.
The above is general comment only and individual advice should be taken