The huge increase in popularity of social media over recent years has created a wealth of opportunities for businesses. Employers may use phenomena such as Facebook, Twitter, blogging and LinkedIn to increase their online profile, generate interest in their brand and maintain relationships with clients and business associates alike.
However, with these new opportunities inevitably comes the potential for misuse by employees and so it is essential that employers develop effective mechanisms to protect their business against the following key concerns.
1. Decrease in productivity
Statistics show that employees aged between 18-29 spend on average three hours per week on social networking sites during work hours.
While employers may try to impose a blanket ban on access to social networking sites, this may well be met with strong opposition from staff, particularly from those who are expected to work long hours at their desks. Limiting the hours within which those sites are accessible may therefore be a better solution. Alternatively, if it can be shown that the wasted time is having an impact on an employee’s work, employers should be dealing with this as a disciplinary issue. No matter how employers choose to restrict their employees’ use of social networking sites, all employers should have in place clear policies dealing with internet usage and the consequences of breaching the policy and should communicate these policies to their employees.
If employees post comments about other employees on online forums that are discriminatory in nature, the employer may be held vicariously liable. Conversely, employers may find themselves falling foul of anti-discrimination laws if, for example, they were to view the Facebook profile of a job applicant and then decide not to offer that applicant a job having discovering his/her sexual orientation or religious beliefs.
One of the simplest and most effective ways for employers to show that they have taken all reasonable steps to prevent the discrimination occurring in the first place is to have an effective anti-discrimination and harassment policy in place.
3. Breach of confidentiality
There is a real risk that employees may, either inadvertently or deliberately, post content on the web which constitutes the employer’s confidential information. Again, it is vital for the employer to have a clear policy in place which includes examples of the types of information which constitute confidential information and what action the employers may take against an employee if it suspects it of being in breach of the policy.
4. Adverse publicity for the employer
It is not uncommon for employees to set up online forums in the employer’s name and some of these forums may post derogatory or defamatory messages about the employer. In order to intervene at the earliest possible opportunity thereby reducing the reputational damage caused by such online forums, employers should consider running regular searches to find out what is being said about their organisation online.
So what is the answer?
An employer may legitimately take disciplinary action against an employee for activities on social networking sites where they constitute clear acts of misconduct, for example, discrimination or breach of the employee’s confidentiality obligations. The situation is less clear, however, where the misconduct takes place outside of the workplace and has more of an indirect impact. Case law on this area has been relatively sparse to date, although factors that will be relevant include whether there is any link to the employer, whether the employer has suffered damage and whether the employer has a specific policy on social networking– hence the importance of having these policies in place.
However, employers can take a more pro-active approach and it is now an accepted (and indeed advisable) practice for employers to monitor the internet and email usage of their employees, provided that they take account of relevant legislation governing monitoring within the workplace – which, broadly speaking, requires employers to have a clear monitoring policy informing employees of what may be monitored and how and what action might be taken against them as a result of a breach. It is also worth bearing in mind the added benefit of effective monitoring, being that any information discovered as a result of the monitoring process may be used as evidence in Employment Tribunal proceedings.
For more information concerning this topic please contact Amanda Lyons or Julie Jones, Solicitor and Partner respectively in our Employment Group.