Legal/Finance
Social networking sites – why employers should tread carefully
8th December 2011
with Andrew Egan, of Charles Lucas & Marshall
The increase in the use of social media as a means of communication has created a range of issues for employers. Andrew Egan, an employment law specialist with law firm Charles Lucas & Marshall says that employers need to be careful how they use them.
More employers appear to be accessing people’s profiles to scrutinise potential employees as part of their recruitment process, as well as using social media for disciplinary purposes.
Such checks are often informal, rather than as a result of any HR or organisational policy. However, the results of such unofficial enquiries can be significant.
Employers may be concerned about drinking or drug use, provocative or inappropriate photographs or information, negative comments about a previous employer, inaccurate information about education or qualifications, the use of discriminatory comments, online profiles linking candidates to extreme political views or to images of sexually explicit or illegal activity.
We recently had the example of an employer who had an employee on long term sick leave and after making enquiries on-line as a result of certain suspicions concerning the employee's state of health, in fact discovered that the employee was in Portugal, competing in a salsa dancing competition.
Employees' social media activities are forcing employers to consider what rules apply when disciplining in such circumstances.
Employers are frequently finding themselves in unfamiliar territory and sometimes getting it wrong.
In most cases employers will have rules regarding what conduct is and is not permitted. If the rules are clear and reasonable and clearly communicated to employees, then disciplinary action taken for their breach is likely to be fair. This applies whether the conduct which breaches the rule is at work or off duty. Employees do have the right to respect for their private life, but they also owe a duty of faithfulness to their employer, which applies online and offline, at work and off duty.
As well as being in breach of disciplinary rules, disciplinary action for online activities can also be justified on the grounds that it brings the employer into disrepute. But this can be tricky ground for an employer, eg a supermarket employee posted a video on YouTube showing two colleagues hitting each other with plastic bags. The employer tried to argue that the employee's activities brought the employer into disrepute but the court held that their dismissals were unfair.
The practice of using online research for hiring decisions or taking disciplinary action against an employee could lead employers into a legal quagmire and ideally should be firmly resisted. One way may be to introduce web checks into the recruitment process and warn job candidates of the employer’s intention.
If a job offer has been made, accepted and subsequently withdrawn after online vetting, there is the potential for a candidate to claim damages and compensation, even if they cannot actually claim unfair dismissal.
It is very tempting for employers to use Facebook and other sites to further screen candidates in the recruitment process, but if an employer’s existing procedures are strong enough, they really shouldn't need to run the risks of looking too much into purely social sites.
For further information contact Andrew Egan on (01635) 521212 or andrew.egan@clmlaw.co.uk
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