The pitfalls of social networking

Sonia Bhola provides practical guidance to employers who wish to safeguard against misuse of social media in the workplace.

ACAS reports that misuse of social networking tools in the workplace costs the UK economy approximately £14 billion annually in lost time. However, the rising significance of such tools for businesses cannot be ignored. Sonia Bhola explores the impact this relatively new area has to the employment relationship and some of the pitfalls of using social media in your business.

Social media is increasingly being used by businesses to:

• connect with potential employees by advertising on social media platforms, such as LinkedIn, in a relatively inexpensive way;
• vet candidates during the recruitment process by looking at social media accounts such as Facebook;
• promote business reputation, brand and product awareness;
• develop existing and new client relationships; and
• improve both internal and external communication.

Many businesses now recognise social media as a powerful tool to improve their business performance and reach their target market. However, it does raise other concerns which are considered below.

Managing performance and health and safety

A recent survey undertaken by ACAS revealed that employees spend on average seven hours online on personal matters each week. The challenge for employers who make social media available, is to ensure that employees do not waste time looking at such sites when they are supposed to be working. Employers should also ensure that employees take adequate breaks away from their computers. This is becoming even more difficult to monitor as a growing number employees work from home or have flexible hours.

ACAS advise employers to draw up a clear policy regarding the use of social media whilst at work.

Recruitment and discrimination

Employers are advised to be careful when using social media tools as part of the recruitment process. Whilst many CVs and job application forms do not now request information regarding an applicant’s age, sex, colour or disability, such information may be easily found on their social media profiles. If a candidate is not offered a post, they may allege that they were not selected on the basis of discrimination.

Also, ACAS warns that only 70 per cent of the population have access to computers and so only recruiting from such sites may contribute to social exclusion of certain groups of society which could lead to indirect discrimination claims.

One option is to state in your recruitment literature that you will only look at social media sites as background checks after the interview stage. Another option is not to look at them at all. It would be prudent for employers to use more than one method to advertise vacancies.

Disciplinary and grievances

The key issue is to define what kinds of social media activity could lead to disciplinary action. It is important to define where an employee’s obligation to you ends and their private life begins. Crucially employees should understand the distinction, as it is essential to determining whether an employee’s conduct, in or out of work, amounts to misconduct for which they could be disciplined. Employers should treat online behaviour in the same was as all other behaviour and consider what impact it will have on your business. You must be careful to avoid knee-jerk reactions, as any penalties must be as a result of a genuine risk to your business.

Equally, if employees are using sites such as Facebook to vent their frustrations about work it may be time to reconsider your grievance procedure and allow for issues to be dealt with internally.

Defamation

Regardless of whether social networking is used for personal or professional reasons, careless statements could cause significant damage to your business.

Whilst you have the right not to suffer reputational damage and not to be defamed by your employees, the employee also has a right to a private life and family life under the Human rights Act 1998. It will not always be the case that negative comments on such sites will allow you to discipline your staff even if you have a social media policy in place.

In 2010, in the case ofPreece v JD Wetherspoons Plcan employment tribunal found that it was fair to dismiss a pub manager for criticising the customers on Facebook as her words were published on a publicly accessible site, even though she mistakenly thought she had set up controls so that only her friends could view her profile. The employer had dismissed her on the basis that her actions acted to lower their reputation.

When considering disciplinary action employers should take into account:

• what actual harm has been done;
• who had access to the comments;
• were they written whilst at work; and
• how the social media site is used by you and the employee.

Cyber bullying

Social media tools make bullying easier to conduct both inside and outside the workplace. If it is discriminatory in nature is could lead to discrimination claims. Revisiting and updating your bullying and harassment policies to include cyber bullying would help tackle such issues should they arise.

Contact lists and confidentiality

Social networking sites that specifically target the business market, such as LinkedIn, raise other issues; such as who owns the contacts that are saved by an exiting employee? Also, is any of the information that appears on an exiting employee’s site confidential and does it belong to the employee or the employer? What about their personal contacts with former colleagues or university friends?

Much will depend on the type of business that you have, how the site is used, whether it is used during work time and is seen by the company as part of the employee’s role. It will be important that your position is made clear in a policy so that employees understand their position both during and after the employment relationship comes to an end.

Monitoring, data protection and privacy

If you are going to monitor on-line activity it is important to have clear policies that expressly state your intent and your methods of monitoring. Failure to do so could lead to a failure to observe certain legislation in this area including data protection.

Practical steps

Introduce a clear policy on how social media should be used in your business. This should include setting clear parameters on matters such as:

• whether employees can look at social media sites, and if so when and for what purpose;
• the use of company resources;
• warning employees that you may monitor their internet activity and social media profiles – this must be proportionate and you must detail how such monitoring will be undertaken;
• whether the company owns any part of an account such as LinkedIn and the information contained on such an account;
• what references the employee may make about the business and their colleagues on such sites;
• a warning that comments on social media sites should be treated as public, rather than private spheres;
• when disciplinary action may be taken and what sort of disciplinary action may be taken; and
• how grievances may be better dealt with.

Further guidance can be obtained from the ACAS website: www.acas.org.uk/index.aspx?articleid=3375