Gardner Leader

Social Networking Sites - the impact on employers

Recent press articles have highlighted the growing impact of social networking sites on the employment relationship. Julie Taylor, Employment Solicitor, explores some of the key issues and the steps employers can take to manage the risks.

What are social networking sites?  

Social networking sites such as Facebook, LinkedIn and Twitter provide users with an on-line platform through which they can share information, photographs and video clips and join in discussions with their friends and contacts.  Users have some control over what information is available only to their contacts rather than to anyone, but problems can also arise where other people can make posts to their pages.

Why can an employee's use of these sites be a concern for businesses?

There are two key areas of concern:-

i)                 the time spent during working hours using social networking sites; and,

ii)                the information that the employee is posting could have detrimental consequences for your business, both internally and externally.

How can these issues be addressed?

To take the first issue, companies can still retain control by having a clear internet and communication systems policy in place. This could expressly deny the employee's access to social networking sites from the company's computer equipment either during working hours or completely.  This could be supported by blocking access to the sites of concern through the company's internal networks.  

However, it is also increasingly apparent that some of these sites can prove very useful to businesses by helping them to extend their network of contacts and work referrers, so completely denying access may not actually be in the company's best interests. This in itself raises the difficult question of the ownership of the contacts that an employee may have made through a social networking site on behalf of the employer, which we may see disputed in the future. Therefore, companies should also consider developing a policy to cover this use of social networking sites.

Regarding the second issue, employers will not be able to control what information employees choose to publish to their internet profiles in their spare time, but what the employee says may require the employer to take steps to protect their position. For example:

# 1: Employee publishes details of their employer to their profile and then describes the job as "boring"

This actually happened to a company last year and the employee in question was dismissed as a consequence of her behaviour. In this instance, the employee was not eligible to claim unfair dismissal because she had less than one year's continuous employment with the company, but employers should be wary of taking such action unless the comments are sufficiently serious. Additionally, employers are required to act consistently in their treatment of employees and consider what could happen if other employees made the same remarks: could the employer be faced with having to dismiss a whole department?

Again, this highlights the importance of having an appropriate internet policy in place to set out the boundaries of acceptable behaviour and these boundaries are likely to vary with the type of work undertaken by every company.

# 2: Employee suspended from work after arrest under the Terrorism Act for comments posted on Twitter

This is also a real example and, although the employee's post was unconnected to his employment, the fact that he was arrested while at his office is a significant factor. The comment that was posted read:  

"You've got a week….otherwise I'm blowing the airport sky high!!"

and was made in response to closures of Doncaster Airport following the recent snowfall. Perhaps unsurprisingly, the police did not see the comments as a joke and arrested the individual under the Terrorism Act and he has been bailed until mid February. The employee was also suspended from his job pending an internal investigation.

Possible action and consequences  

As these examples demonstrate, comments publicised on social networking sites can prompt employers to take immediate disciplinary action. Whether the employer is entitled to take such steps free from repercussions depends on what the employee has done. Again, it is extremely important to have a clear internet and disciplinary policy to address any breaches, but there are some obvious pitfalls that employers should watch out for. For example:-

Consistency & Discrimination: As mentioned above, where a number of colleagues are engaged in an on-line discussion, all of them would need to be treated in a fair and consistent manner. If the first employee to get caught was given a written warning, all others should be disciplined appropriately and receive the same sanction.

Failure to treat employees consistently could lead to a discrimination claim, for example, if a blind eye was turned to photographs of male employees’ drinking exploits, but female staff were dismissed or disciplined for similar behaviour. 

Vicarious Liability

Conversely, an employer could also be liable if they FAIL to do anything about comments published on a social networking site. Consider the situation where it comes to an employer's attention that one of their employees is posting offensive and possibly discriminatory comments about a colleague on a social networking site: such action could amount to bullying and harassment and the employer will be vicariously liable for the actions of their employees unless they can show that they took such steps as were reasonably practicable to prevent the employee from carrying out the discrimination. This means that social networking sites could be seen as imposing additional duties on employers to investigate disputes between employees which may not even be conducted within the office.

Conclusion

It is essential to have a clear internet and communications policy in place to manage these issues and developing a social networking policy would also be advisable where employees are encouraged or able to use these sites in the course of their employment.

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