Part Two
Best practice would be for employers to devise a specific set of rules which regulate the use of social networking sites both within and outwith the workplace, in the form of, for example, an ‘acceptable use’ policy. This would cover the situation discussed above involving harassment and online bullying, as well as the general use, out with work time, of websites such as LinkedIn and Facebook.
The policy should remind employees that they are representatives of the company and also that what they post on these forums is not necessarily private. Copyright issues could be addressed, as well as warnings on the inclusion of personal details and subsequent susceptibility to fraud. The policy should also make it clear what kind of behaviour could warrant disciplinary action (for example, bringing the company into disrepute), and what could potentially constitute gross misconduct, and be grounds for dismissal. This presents to the employee clear guidelines to be observed, and means that in any future disciplinary procedure, the employer can point to an easily accessible policy, for example, on an intranet. Another sensible course of action would be to have all employees read and sign a copy of this policy to acknowledge their acceptance of its content. This code should also provide for procedures to be followed in such a situation, adhering to the ACAS code, as well as outlining any internal disciplinary procedures.
Usefulness of social networking
From an employer’s perspective, such websites can be useful in terms of vetting potential candidates. Frequently what people choose to post on social networking sites can be telling, and may affect the employer’s decision on whether to employ someone in the first place. Employers, however, must be aware of the legal implications of making use of such information.
Any such action by the employer must be consistent with the provisions of the Data Protection Act 1998 Schedule 1. Vetting candidates in this way is likely to involve the use of ‘personal’ or ‘sensitive personal’ data given the nature of the information that people post on social networking sites. It is also possible that decisions not to employ a person based on these criteria may leave the employer open to a discrimination claim. Applicants/employees should be informed that their use of the Internet may be monitored in accordance with the 1998 Act, the Human Rights Act 1998 (if applicable) and the Information Commissioner’s Employment Practices Code. The human rights issue, however, is perhaps less significant than initially thought, in that cases centring on employee surveillance have indicated that activities partly taking place in public do not engage Article 8, the right to respect for private and family life. This is reinforced by the fact that much of this material is freely accessible by other users.
It is clear that social networking by employees, whether with malicious intent or just through mismanagement, can have potentially disastrous consequences for an employer. Due to the relative infancy of this issue, the current framework of employment law does not provide concrete responses to many of the questions which arise. The main thing for employers to consider is the putting in place of a regulatory framework to govern this area with the aim of covering all eventualities. Employees, of course, must also be aware of the risks and consequently proceed with caution in terms of what they deem suitable for posting on such websites. It is difficult to argue that tribunals should essentially protect employees from content they chose to post online, but it remains to be seen what approach the tribunals will take in this regard. With the social networking trend unlikely to reverse, these issues will only continue to arise, with more frequency, and in a wider range of contexts, and employers must be prepared.
David Ogilvy, Partner in employment law and litigation, Turcan Connell
David specialises in litigation and employment law. He is accredited as a specialist in employment law by the Law Society of Scotland and has over 19 years’ experience of contentious matters in a wide range of areas. He previously served a 5 year term as part-time Chairman with the Employment Tribunal.
David has a wealth of experience in all aspects of employment law as they impact upon individuals. His experience includes representing directors and other senior executives and advising in all areas relating to their relationship with the company, e.g. service agreements, restrictive covenants and other contractual matters and all legal issues arising out of the relationship and its termination.
David acts for a number of high profile charitable organisations in Scotland on all aspects of managing relationships with the work force and represents not for profit clients at tribunals. He has experience of both non-unionised and trade unionised work places and relevant negotiating structures enabling him to advise on practical issues which arise on a day-to-day basis.
Turcan Connell’s comprehensive employment law advice extends to all areas affecting agricultural estates and enterprises and charities, from recruitment to termination.
Chambers UK describes David Ogilvy as heading the three-person team, and is praised for "doing quality work". He is also "widely respected for his contentious employment work".
- David Ogilvy
- David Ogilvy
- David Ogilvy
- David Ogilvy
