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Social media in the workplace and how to manage it
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A presentation given by Neil Buck
and Rob Powell The Personnel
Dept at the BizGen Conference and
Expo Lincoln
Social Media -
Employer Considerations
Neil Buck & Rob Powell
25th October 2011
In 2006 TUC described Facebook's 3.5m users as
"HR accidents waiting to happen”
In the UK, there are now:
• Over 30m Facebook users
• Over 4m LinkedIn members
• ? Twits out there?!
Benefits of SM Use • Positive image of a business into the public
domain.
• Networking with other professionals may lead to business opportunities.
• Openness to/ use of modern forms of communication may enhance the employer's appeal for recruitment purposes.
• Provides a rich vein of information about candidates on recruitment and can also provide evidence in cases involving the employee.
Key Issues
Include:
• Employees who act inappropriately in their “private”
life
• Employees who criticise their employer online
• Bullying and harassment using social media
• Proving culpability where employees dispute their
involvement
• Ensuring consistency of treatment
• The impact of human rights and data privacy laws
Legal Risks
• Discrimination
• Confidential information
• Recruitment & Data Protection
• Loss of Productivity
• Loss of Reputation
• Privacy
Discrimination
Employers can be held vicariously liable for
discrimination by their employees
e.g. comments are made about another employee
online that amount to harassment, liability can arise
for the employer, whether or not the employee is
using the employer's equipment.
Confidential Information
• Employees may post confidential information
online
• One potential problem – LinkedIn contacts - clients
still confidential?
• Who does it belong to – e‟er or e‟ee?
• Can the employer get access?
• Can the employee breach non-solicitation RC‟s
after employment by using the contacts?
Recruitment
• No legislation that prohibits employers from
considering information from e.g. an individual‟s
Facebook profile when recruiting BUT
• Possible discrimination claims if the information is
used to reject a candidate
• Possible DPA breach re processing anything
gleaned from profiles if it records or uses the
information.
Loss of Productivity
• Access to SM during work time can lead to reduced
productivity. If it is permitted, the parameters need
defining.
• Aug 10 - Report by My Job Group („Social media in
the workplace‟) and based on a survey of 1,000
respondents. Time on social media sites:
- 55% admitted accessing these sites while at
work
- 16% spent over 30 minutes and
- 6% spent an hour or more per day
Loss of Reputation
• Main concern is to protect its reputation, but
damage will often be speculative and difficult to
substantiate. Furthermore, the employee may be
using his own equipment in his own time?
• Protection v Right to Privacy??
The BIG Q – is it proportionate and therefore fair to
dismiss an employee for what has been done or
reported online rather than whether the employee
has retained his or her right to privacy.
Privacy
• Collision - Employers desire to protect v an
employee's rights of privacy and freedom of
expression. s98 of the Employment Rights Act 1996
must be construed in a way which is consistent with
the European Convention on Human Rights (the
Convention).
• If an employer dismisses an employee in breach of
those rights, dismissal could be disproportionate
and therefore unfair.
• Private life includes social interaction and the right
to develop relationships with others, even at work.
• Early cases suggested that if the employee put his
information in the public domain, he lost his right to
privacy under Art 8 of the Convention. Later cases
suggest it is not quite that simple. Since all UK
legislation must be construed in a Convention-
friendly way, what is "public" for these purposes will
also inform what "public" means under the DPA.
Recent Cases
• Preece v J D Wetherspoons PLC
ET found dismissal FAIR
• Whitham v Club 24 Ltd t/a Ventura
ET found dismissal UNFAIR
• Both cases involved Facebook entries
Distinctions between the two cases can be made
in a number of ways:
• Preece posted comments whilst actually at work whereas Whitham
did so outside work hours
• Preece also named her customers when expressing her views on
them. Whitham, by contrast, did not name anyone
• Wetherspoon's had a clear and detailed social media policy which
expressly referred to the use of social media whilst at work and stated
that disciplinary action could be taken if comments on sites such as
Facebook "lower the reputation of the organisation, staff or
customers…" and that failure to comply with the social media policy
could amount to gross misconduct. Conversely, in Whitham there did
not appear to be a policy and they overlooked parts of her contract,
such as whether they could demote her.
SOLUTION • Introduce a Social Media Policy including,
• Rules about accessing social media sites at work: when and for how long?
• Information about what monitoring may be undertaken by the employer and the uses to which the results may be put.
• A reminder to employees that they must not disclose confidential information or trade secrets on such sites or make derogatory or discriminating comments about the company, their colleagues or their clients, on such sites, whether those comments are made at work or outside the workplace.
• A reminder that employees should not misuse other
employees' personal data in online media.
• A requirement that employees insert a disclaimer
into any blog or posting stating that any views
contained in it are those of the employee and are
not representative of the employer's views.
FREE
SOCIAL MEDIA POLICY
Just come and see us at the stand.
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