SOCIAL media in general and its improper use in particular can be a legal minefield which in some cases can lead to actions for defamation and even prosecutions.
But when you add place of work, colleagues and superiors into the social media mix, another whole world of pain can potentially beckon for both employer and employee.
Before delving into the legalities of how both employers and employees can best safeguard themselves, it’s important to be aware of some employee statistics:
• 39% have befriended a colleague or business contact on Facebook or LinkedIn
• 14% have posted a status update or tweeted about their work
• 22% have tweeted about a work colleague
• 28% have posted photos of colleagues or business activities
• 1% have posted confidential business information
If an employee misuses social media in the workplace there are very real risks to the employer; reputation can be damaged; discrimination, defamation or harassment claims could ensue; or there could be a serious breach of confidentiality.
It’s good to use some real life examples of the kinds of issues that have arisen in cases in recent times. Some are very clear cut, whilst others highlight how difficult it can be for an employer and employee if there has been an alleged breach.
For example, in 2011 Apple dismissed an employee for posting derogatory comments on Facebook about an Apple app. Apple’s social media policy prohibited critical comments about the Apple brand and products, and as part of the employee’s induction he was explicitly informed about Apple’s expectations on social media and the consequences of any breach. So, he got dismissed.
Closer to home, an industrial tribunal in Belfast recently upheld the dismissal of employee for making vulgar comments about a female colleague on Facebook. Whilst the comments didn’t bring the employer into disrepute, the harassment justified the employee’s dismissal for gross misconduct, regardless of whether this was face to face, or on social media.
Misuse of confidential information is another pitfall of social media. A recent case arose where three employees left a company and set up as a competitor. One of the employees had managed and maintained via Linkedln a database of customers for their former employer, and refused to hand back passwords and access details. The company sought an injunction to restrain use and was successful, as the High Court said that LinkedIn accounts were operated and maintained by the employee as part of her employment duties with that particular firm.
Employees who post derogatory and untrue comments about their employer or their employer’s competitors could be subject to libel proceedings. However, employers could be indirectly liable for a defamatory statement made by an employee during the course of their employment about a competitor or client. It’s worth noting that libel proceedings are lengthy and costly.
There are also dangers when using social media for recruitment from both the prospective employee and employer’s point of view.
Two in five employers admit to looking up candidate’s online activity to help them make recruitment decisions. So when you are applying for that all-important job, make sure you clean up your Twitter, Facebook and Linked IN pages.
Employers need to comply with the Data Protection Act and should be mindful of the Information Commissioner’s Employment Practices Code which covers recruitment. Strictly speaking, candidates should be made aware that online checks may take place, and employers should only use information from a reliable source. Collection of information should be adequate, relevant and not excessive.
And finally, candidates should be given a chance to comment on information found and allowed to make representations where information may affect the decision to appoint. The reality however is that many employers review the online profiles of potential candidates without telling them. There are some steps that employers can take to protect themselves and their employees such as the following:
• Decide on a social media strategy;
• Introduce a social media policy which should be co-ordinated with other policies (email, internet disciplinary policies);
• Set out parameters governing use of employer’s IT systems;
• Remind employees that social media activity may not necessarily be private and identify the information that should not be disclosed.
• Ensure that all employees are trained on the social media policy.
:: Aisling Byrne is an associate at Belfast law firm Cleaver Fulton Rankin. She specialises in employment law and handles wide-ranging employment and discrimination cases. She also lectures on the MSC course in Digital Media Communication at Ulster University.
