James, S. (2011), "Social networks" at work – employment law and the Facebook generation", Human Resource Management International Digest, Vol. 19 No. 6. https://doi.org/10.1108/hrmid.2011.04419faa.001
Emerald Group Publishing Limited
Copyright © 2011, Emerald Group Publishing Limited
"Social networks" at work – employment law and the Facebook generation
Article Type: Employment law outlook From: Human Resource Management International Digest, Volume 19, Issue 6
Social networking at work
The huge explosion in popularity of social networking sites such as Facebook and Twitter has caused problems, as well as opportunities, for employers. Now that employees regularly also blog and tweet, the boundaries between work and employees’ personal lives can be increasingly blurred.
In Preece v. JD Wetherspoons plc, the problems which can arise when the boundaries do become unclear were underlined, when an employment tribunal decided that a pub manager had been dismissed fairly for gross misconduct having made inappropriate comments on Facebook about her customers, in breach of the employer’s e-mail and internet policy. There are many advantages for an employer in having an IT-literate workforce, but there are possible risks as well as benefits, as this case highlights.
The Tribunal held that even though the customers had verbally abused and threatened the manager, her employer was entitled to take the view that the conversation on Facebook, which took place while she was at work, amounted to gross misconduct. It did not matter that the manager thought that her privacy settings meant that only close friends could see her entries; in fact a wider audience was able to view her Facebook page, including relatives of the customers in question. As a result, the manager was found to be in breach of the employer’s e-mail and internet policy, which specifically referred to employees’ use of media such as Facebook while at work.
Whether an employer acts reasonably in dismissing an employee must be assessed objectively: did the employer’s decision to dismiss fall within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted? A tribunal must not substitute its view for that of the employer.
In reaching its decision, the tribunal acknowledged that the customers’ behavior was abusive and shocking. However, the Facebook entries took place over a lengthy period of time, after the situation had calmed down and the manager was working as normal. Miss Preece knew that she could use a “hotline” to seek the advice of an experienced manager or, if she felt distressed, to ask permission to leave work early.
For employers, this case highlights the importance, and usefulness, of having a properly drafted policy regarding the use of social media. The lesson for employees is not to use Facebook or similar media as a way of venting frustration about work. In this way, this case highlights the differences between the generations. Social media, such as Facebook or blogging generally, is now widely used as a means of communication. The mistake that Miss Preece made was not to use a more formal route, which was open to her via a “hotline”, to discuss the problems that she had at work that day.
Possible risks for an employer
In addition to the disciplinary issue dealt with above, there are a number of other potential risky areas for an employer whose employees are for example, posting on Facebook or tweeting.
Anti-discrimination laws can hold employers “vicariously” liable for discrimination by their employees. If an employer takes all reasonably practicable steps to prevent the harassment, this will help to provide a possible defense. Appropriate policies and training should therefore clearly indicate to employees that online behavior which has any link to work, even if it takes place outside of work, should conform to appropriate standards.
Employers are also exposed to the danger that employees may post confidential information online. The issue of social media and privacy is one which has occupied many column inches in the press this year already, and is unlikely to face away any time soon. Employment contracts could be reviewed to ensure they specifically address the issue.
Given the type of information typically found on blogs or social networking web sites, a claim for discrimination is a real prospect if the information is used to reject a candidate. While a job applicant’s sexuality or religious beliefs would never usually be included in their CV, employers can now gain access to such information with relative ease via the internet.
Most employers would provide a different reason for rejection, but if a job applicant were to become aware of the real reason, a successful claim is likely. More subtly, inferences can be drawn where there is no clear explanation for rejection, and the evidence points to a discriminatory reason.
The Information Commissioner’s Office has not issued specific guidance on the use of online profiles to inform recruitment decisions, but when an employer consults them to glean information about candidates, it processes (in the Data Protection Act 1998 (DPA) sense) that information if it records or uses the information.
Specifically, Part 1 of the Employment Practices Data Protection Code (the Code) requires the candidate to be given an opportunity to comment on the information’s accuracy. Candidates should be told about the employer’s vetting and verification exercises and the nature of the enquiries should be proportionate. Few employers who have a general rummage on Facebook are likely to satisfy these requirements fully.
Employers could block or impose an outright ban on any access to social networking sites at work, but this does not cure the problem of “out of hours” activities and is likely to be unpopular. Employers would also lose the opportunity to take advantage of any benefits to the business.
Given that the main source of the issues arising out of blogging and social networking web sites is the perception that these sites are “private”, a more effective way for employers to manage these issues could be to draw to employees’ attention that anything they post may well in fact be in the public domain. In addition, the publication and use of a specific social media policy may be useful to set clear guidelines.
Sarah James Associate Solicitor at Dickinson Dees LLP, Newcastle upon Tyne, UK.
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