Is there too much 'Tweeting', 'Poking' and 'Blogging' in the workplace?

Websites such as Facebook, Twitter, LinkedIn and My Space have become powerful and useful social and business networking tools over recent years.  Let’s face it, it has advantages if a Facebook group managed to stop Simon Cowell’s X Factor winner getting to the top of the charts this Christmas!  But when it comes to the workplace, can employers use these networking sites to monitor their employees or find out more about job applicants? It can be tempting when an employee rings for the third Monday in a row with a ‘splitting migraine and aching muscles’ to establish if it is caused by the previous nights’ fifteen pints and ten rounds with the bouncer outside the local nightclub!  Or perhaps when a candidate for a job says they are a ‘team player, confident and persuasive’ whether their last name is Soprano and a member of the local mafia. 

These practices can be risky and potentially in breach of employment legislation.  Vetting job candidates through social networking sites could lead to discrimination claims.  An employer must not discriminate directly or indirectly in the recruitment process by the arrangements for recruitment, the terms offered or by refusing or failing to offer employment to a job applicant. Web sites such as Facebook often contain personal information, for example about sexual orientation, race, or marital status.  In the absence of an adequate explanation for refusing a candidate a tribunal can conclude that the employer has committed an act of unlawful discrimination. There is also potential for breach of the Employment Practices Data Protection Codes which states that an employer should only use vetting systems where there are ‘particular and significant risks involved to the employer, clients, customers or others’ such as working with children or vulnerable people.

Employers have also dismissed staff following comments on Facebook.  For example, a telephone directory enquiries company recently fired one of its employees who posted a comment that the people of Britain should ‘rediscover the phonebook’.  Although it can be tempting to fly off the handle in these type of cases, care should still be taken to ensure a full and fair process is followed and employers should be ‘reasonable’ and consider all the circumstances. For example, who is available to view comments posted? Is the employer compliant with Data Protection by looking at these pages? How serious is the offence? Has the employee been subject to any disciplinary process previously and been warned about their conduct? Therefore, although the use of these sites can assist in some cases, employers should take care as well as legal advice, to ensure they have the right to view this information and know how to use it appropriately, as it can be a risky and costly endeavour to fail to do so.

For further information on employment issues, please contact Ruth Williams, Kerry Waters or Deborah Boylan at Raworths LLP Solicitors on 01423 566666 or at ruth.williams@raworths.co.uk, kerry.waters@raworths.co.uk or deborah.boylan@raworths.co.uk.