The increase in the numbers of social networking sites such as Facebook and Twitter pose real challenges for employers. The attraction of their instant nature is compulsive for many, and it is crucial that employers have policies in place so that employees are clear about what is and what is not acceptable.
Q What rights do employees have to use Twitter in the workplace?
A Employees have no general ‘right’ to use sites such as Twitter during working hours. Most employers, as a matter of policy, allow a limited amount of personal use of social networking sites during the course of the day, but such use will tend to be limited to lunch hours and breaks. This does not fit well with the purpose of Twitter, which is to keep friends updated during the course of the day on what you are doing. Many employers may therefore choose to prohibit the use of sites, such as Twitter, during working hours.
Q What measures can employers take to prevent the use of Twitter?
A It is key that employers have clear policies on what use is permitted. For example, if a particular internet site is not allowed, then details of the ban need to be made clear, as do the consequences of breaching the policy. There are practical difficulties with outright bans in terms of policing and the potential damage to employee relations. If an employer monitors usage to ensure the rules are followed, this will also need to be made clear to the employees. Employers may also want to consider introducing a code of conduct on the use of such sites. This would involve the employer setting out the specific internet access that is allowed and the employee in turn agreeing not to bring the company into disrepute or otherwise undermine the employment relationship through the use of any social networking sites.
Q Can employers search social networking sites for information on employees when recruiting or considering promotion?
A While employers can search sites for information, there are inherent dangers in relying on the information found on social networking sites. For example, how do you verify the information and what weight do you place on it? The information might have been placed by a disgruntled former friend or colleague. There may also be discrimination issues, as information obtained may relate to an individual’s sexual orientation, race or religious belief. If this information impacts – or is perceived to impact – on recruitment decisions then discrimination issues arise. There are also potential age discrimination issues due to the age profile of those using networking sites. Searches as a recruitment tool are effectively pre-employment vetting, which has data protection implications. The Employment Practices Data Protection Code makes clear that vetting should be limited and employers should “only use vetting as a means of obtaining specific information, not as a means of general intelligence gathering”. The code also deals with the issues of “unreliable sources”, stating “do not place reliance on information collected from possibly unreliable sources. Allow the applicant to make representations regarding information that will affect the decision to finally appoint”.
Q What if employees use Twitter to bad mouth their employers or other employees outside working hours?
A Some of the risks that employers face with employees ‘Twittering’ are: damage to their reputation, disclosure of confidential information, and potential vicarious liability for any discriminatory behaviour or ‘cyber bullying’ by an employee of another employee. All these risks apply even if the employee is Twittering outside of working hours.
In relation to cyber bullying, there are several issues. First, if comments are about work colleagues, these comments could be used as evidence against the employer and any individual respondent in tribunal proceedings of discrimination in terms of the attitude and culture of the workplace. Any online dialogue could also be used to support any claim of bullying in the workplace. Second, if there are any complaints of discrimination made against particular managers who deny their actions are discriminatory, any defence may be undermined if they are later shown to be displaying a certain attitude or participating in inappropriate dialogue on a social networking website.
Q What measures can employers take?
A Employers may be able to take disciplinary action, and depending on the specific comments, if they are defamatory, there may also be scope for libel proceedings or seeking an injunction to have the offending comments removed. Additionally, if the employee is in breach of contract and has caused quantifiable loss to the company, there may be scope for suing for damages. Any action that an employer considers, however, should be tempered with an observance of an employee’s right to freedom of expression. This will arguably cover the ability to complain about work, provided it is not discriminatory, damaging or libellous.
Jo Wort, professional support lawyer and Gagandeep Prasad, solicitor, Charles Russell