Michael Salter is an associate member of the myBarrister portal, and covers the legal risks of online pre-employment veting and offers guidelines for employer and employee conduct with regard to social media.
We all know that social media has its value in the workplace, from generating business leads through LinkedIn to creating brand buzz and a customer community via Twitter and Facebook. The issue is that most company’s IT policies barely cover email, so if an employee blurs the line between their personal and professional comments and causes embarrassment, companies can be left facing an HR dilemma.
An employee resigning and claiming unfair dismissal as a result of a ticking-off from their manager about improper social media activities is of course a worst-case scenario, but it doesn’t hurt to prepare for that eventuality. The first and often primary step for any businesses is to establish a relevant and up-to-date IT and social media policy setting out when and how work email, telephone and internet access may be used, and guidelines for an employee’s use of social media, both for business purposes and personally.
This policy document – which should be written and signed as being seen by staff – could set out restrictions on the use of personal Facebook and Twitter accounts during and outside working hours, including a ban on referencing their employers, alongside guidance on the business’ own profiles and the activities which would give rise to disciplinary action. It’s all about ensuring people know where they stand, and could even include details on the handover of profiles and followers upon termination of employment, which has fast become a contentious issue given the association between followers and business ‘leads’.
Online vetting a no-go area
This policy does not, however, mean that companies have a licence to snoop. Accessing personal emails or an employee’s Facebook or Twitter account is hard to justify, as is checking a potential candidate’s social profiles. Companies instead need to ask themselves ‘if you wouldn’t ask someone about their friends and social life during an interview why go digging for this information online?’ As a guide the Information Commissioner’s Office (ICO) treats checks on an applicant’s online profile as pre-employment vetting and states that this should only take place where there are significant risks to the employer and its customers, and where there is no less intrusive alternative. In this instance the ICO also recommends explaining that these checks are being carried out to the candidate.
From a legal perspective I would also caution against vetting candidates on the basis that it could put a company at risk of ‘recruitment bias’ as a result of social profiles being more likely to disclose ‘protected characteristics’ under the 2010 Equality Act, such as age, gender, race, religion and sexual orientation. A disgruntled candidate whose social media profile had been checked could, for example, claim that the rejection decision was discriminatory, leaving the business open to a disruptive and potentially costly tribunal claim. I would also argue that any embarrassing posts made by a candidate, if made in the past, would also most likely no longer be relevant should they dispute a decision on this basis. I would instead urge HRs or the managers handling applications to seek independent legal advice if in doubt.
When it comes to the online activities of current employees, and where employers have a right to disciplinary action, there are two key cases: Teggart vs TeleTech and Crisp vs Apple Retail UK which are often referred to. In both cases, which involved the posting of scurrilous remarks about the sexual promiscuity of a work colleague and derogatory comments about company products respectively, the company’s disciplinary actions and dismissals were upheld, despite the improper conduct having taken place out-of-hours and on personal Facebook profiles. These and other cases mark an important move within the law establishing that tribunals will view Facebook as an ‘open’ network where employers can have no reasonable expectation of privacy as a result of the ease with which these comments can be passed on to those involved.
What constitutes gross misconduct
Nevertheless in the case of Crisp vs Apple Retail UK the company’s case was also supported by the fact that its disciplinary and training policy covered this area and that the Claimant had received detailed training on the policy so it’s worth taking note and following suit. Establishing an agreed disciplinary policy which makes it clear that any inappropriate use of social media that brings the company into disrepute or bullies staff will be viewed as gross misconduct is hugely important – particularly the latter issue of bullying as employers can be held vicariously liable for workplace harassment of third parties and where the employer’s reputation and image are important
And when it comes to the issue of who ‘owns’ social media accounts, and therefore the followers and business contacts therein, there is a growing trend in contracts to see clauses expressly linking these to the employer. Comfort can be taken from previous cases such as 2008’s Hays Specialist Recruitment vs Ions where courts ruled that an employee had to disclose the contacts taken from their work email account, which they were using to invite people to join their personal LinkedIn account. Again the determinative feature was that their authorisation to use contact emails did not extend beyond their employment – another stipulation that can be worked into an all-important company IT policy.
Ultimately with the law relating to social media rapidly evolving, this is an area that will continue to cause issues for employers in the coming years, but simple measures such as a well-drafted social media policy, applied as a matter of urgency, can provide peace of mind. And on the flipside employees need to exercise some discretion of their own. A comment on Facebook isn’t the equivalent of a chat with friends in the comfort of your own home. It can kick-start a chain of communication with which an employer can quite justifiably take umbrage.
Michael Salter is a specfialist employment barrister and myBarrister associate.