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

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