Social media has grown rapidly in recent years and is yet another source of potential pitfalls for employers. The use of Facebook, Twitter, LinkedIn and instant messaging such as MSN is rife in the workplace which raises issues such as productivity of staff, confidentiality, inappropriate behaviour and potential claims.
The use of social media in business does have its advantages and certain types, such as the professional networking site LinkedIn, are being actively encouraged by some employers. The use of blogging can also create a positive and up-to-date business image and can reach a much wider audience than any form of traditional advertising. In the context of recruitment, social media can also be a valuable source of information about candidates and can also enhance an employer’s appeal for recruitment purposes. However, any use of social media in the workplace must be carefully considered by employers in order to prevent abuse.
Aside from the obvious consequences of lost productivity from staff caused by excessive use of social media, there can be more far-reaching and costly consequences of employees’ indiscretions in this area. These can include discrimination, loss of confidential information and breach of data protection legislation. In the context of discrimination, employers could be liable for the discriminatory comments made by employees about other employees away from the workplace and out of hours, which membership to a site like Facebook, for example, allows. The cost, if claims ensue, can be significant to a business.
If, as an employer, you use social media to influence your recruitment decisions, you also risk discrimination claims if certain information is used to reject a candidate (or if the candidate believes this to be the case). 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. If a candidate is rejected, they can bring a discrimination claim as a result. If the employer does not convince the Employment Tribunal that there were other legitimate reasons for rejection, the discrimination claim would succeed with potentially very costly consequences. In addition, employers potentially risk breaching data protection legislation if they fail to inform candidates that they intend accessing on-line profiles.
So what can employers do to protect themselves? Put policies in place setting out clear guidelines on the use of social media. These need to specify whether such use is permitted, when and in what context. They should also draw employees’ attention to the fact that anything they post is public and explicitly prohibit employees from making any discriminatory comments. The guidelines should also make it clear that confidential business information must not be disclosed and inform employees that their use of social media may be monitored. Disciplinary procedures should also be updated to include the breach of social media guidelines as a potential ground for gross misconduct. Any breaches should be acted upon to demonstrate that inappropriate use will not be tolerated. In the context of recruitment, employers need to ensure that they have good recruitment processes in place and that they document their reasoning for rejecting any candidates they consider unsuitable.
By putting in place robust and well-drafted policies, employers should be able to embrace the growth of social media and reap the benefits for their business.
Sally Togher is a solicitor in Raworths’ Employment Unit. To contact Raworths, telephone 01423 566666 or visit our offices at Eton House, 89 Station Parade, Harrogate HG1 1HF. Alternatively you can email Sally at sally.togher@raworths.co.uk
