Social media has brought a plethora of new opportunities for many businesses. However, the employment law implications are far ranging and arise from recruitment through to termination. This article discusses those implications and suggests steps employers can take to protect themselves.
Dealing first with pre-employment, employers increasingly consider checking social media sites an important part of the recruitment process. However, this is not without risk. Depending on an individual’s security settings, a vast amount of information can be gleaned from a simple internet search. We have all heard the warnings of uploading pictures of wild nights out, although what about other elements of our online profiles? For example, information regarding an individual’s sexual orientation and/or religious beliefs may be easily identifiable. As with any other form of recruitment, employers must ensure they base decisions on solid (non-discriminatory) grounds and have such reasons documented in case of challenge. More practically, placing too much reliance on social media trawls may result in good candidates being lost on the basis of unverified information. Employers should also comply with the “pre-employment vetting” sections of the Information Commissioner’s Employment Practices Code. Clearly pre-employment internet searches do (or at least did) not form part of Kent police’s recruitment policy. However, Ms Brown’s case demonstrates the potential issues they can raise.
During employment, issues may include cyber-bullying and harassment and/or defamation. Employers can be vicariously liable for such acts if they are deemed to have been committed by an employee “during the course of employment”. Already not always a straightforward assessment, the ease of access and increased use of social media both at home and work have further blurred the boundaries as to what this covers. Employers should not automatically assume that because a tweet was made at home or an email sent from a personal account, they are off the hook. Other potential issues are disclosure of confidential information or bringing an employer into disrepute.
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As with any such behaviour off-line, an employer will need to establish a fair reason and follow a fair process for the purposes of any disciplinary action. Unsurprisingly, this is what a lot of the case law centres around. One example is Smith v Trafford Housing Trust in which Mr Smith succeeded in claiming breach of contract (and the court said would have also succeeded with a constructive unfair dismissal claim had one been brought). Mr Smith had been demoted and his pay reduced as a result of comments he had made on his Facebook page opposing gay marriage. Despite the page mentioning that Mr Smith was an employee of the Trust and 45 of his colleagues being his “Facebook friends”, the court found it was clear that Mr Smith used Facebook socially. There was therefore no risk that his comments would be mistaken for the views of his employer, nor would they bring it into disrepute. The court held the comments were expressed moderately and the fact that another employee had been offended a necessary price to pay for freedom of speech. Previous case law indicated that an individual could have no expectation of privacy in respect of Facebook posts and courts were relatively quick to establish a link with employment. Examples include employees being found to have been fairly dismissed for posts about the workplace, colleagues and/or customers. Smith steps away from this and therefore emphasises the need for employers to act reasonably.
To go back to Ms Brown, the facts of the case are of course somewhat extreme given her age at the time of the tweets (14-16), the purpose and high profile nature of her role and the resultant public interest. The tweets were made pre-employment and so establishing vicarious liability would be difficult if not impossible. However, it is certainly arguable that retaining the comments following their discovery would have brought Kent police into disrepute. Given Ms Brown’s age, her vilification was felt in some camps to be excessive. However, for an employer to take age into account in determining whether to instigate disciplinary proceedings would open the door to inconsistent practices, which is inadvisable from a discrimination perspective. Such arguments are of course academic as Ms Brown resigned, sparing the need for Kent police to take any form of action in an employment context. In any event, with not having the requisite length of service for an unfair dismissal claim, Ms Brown would have been left with little legal remedy. Many employers would therefore have been willing to dismiss in such circumstances without following much, if any, process. However, if there are legal concerns (such as discrimination and/or unfair dismissal) a fair reason needs to be established and a fair process followed.
ACAS has produced guidance to assist employers dealing with social media implications. One of its key recommendations is to implement a policy setting out the expectations on both parties, including the extent to which the employer will allow access at work, for what purposes and whether access is limited to certain times or sites. It is also advisable to cover use of social media outside of work to try to limit the employer’s liability in this regard.
Whilst having a policy is in itself important, for maximum benefit staff must be trained on its content. An employer should also ensure that the policy has “teeth” by treating non-compliance in accordance with its disciplinary policy. The need to act reasonably and consistently with “non-electronic misconduct” is outlined above.
Best practice dictates that businesses monitor employees’ use of social media sites/the internet generally. If used, the practice must be adopted fairly and consistently, whilst keeping in mind the employer’s obligations under the Data Protection Act and the employee’s rights under the Human Rights Act, especially the right to privacy and freedom of expression.
Following termination, the issues continue – what happens to contacts established during the employment relationship and posted to social media sites such as LinkedIn, for example? What if an ex-employee posts details of a new role whilst still on notice? It has to be said that policing activities online and seeking legal enforcement is not straightforward. Where such issues are a concern, a business is well advised to ensure that its relevant policies and post-termination restrictions are drafted so as to expressly cover social media based activities.
In conclusion, it goes without saying that the use of social media is only set to increase. Our advice to any employer is therefore that they consider the ramifications within the context of their business. They should then ensure that they have a carefully drafted policy to cover these ramifications and that the policy and the principles it establishes are “active” in the business by way of training and consistent enforcement.
About the Author
Ann Munro, Senior Associate at Charles Russell LLP.
