Employees and Social Networking Sites

Understand your options regarding the use of social media sites at work by employees.

The growing popularity of social networking sites has raised various employment related issues. As an employer, it is not unlawful to check a job applicant’s profile on such a site. However, if a decision not to employ that applicant is based upon certain information in their online profile, for example, age, sex, race, religion, sexual orientation, then the employer could face a claim for discrimination. It is an employer’s decision who to employ and there is no redress for a potential employee unless they can prove that the employer has acted in a discriminatory way.

However, it would be difficult for an applicant to prove the employer had accessed their profile during the recruitment process and an employer is unlikely to confirm this to an applicant. As an employer it is advisable to be consistent and therefore check every applicant’s online profile or not at all.

An employer has the right to refuse to employ an applicant based upon their online profile if the reason is not discriminatory (for example, if their profile contains pictures of them behaving in an anti-social or criminal way). In this respect, an applicant would be unlikely to be able to rely on any provisions of the Human Rights Act (freedom of expression) as by publishing their profile online and making it publicly available they are thereby waiving any rights they may otherwise have had under this Act.

An employer is entitled to prevent an employee from using the office equipment to access social networking sites. It is wise to have an “internet/email/telephone use” clause in the employee’s contract of employment setting out whether the employee is permitted to make use of the employer’s internet facilities for personal use, at what times personal internet use is acceptable, and the consequences if these rules are not adhered to.  Having this set out for the employee will make it easier for the employer to defend any unfair dismissal claims they may face.

If an employee makes derogatory remarks about an employer company on their profile/blog, libel proceedings can be brought against the employee. If these comments were damaging to the employer, the employer could discipline and dismiss the employee for a breakdown of trust and confidence, regardless of the employee’s contract of employment as all employees have implied terms of trust and confidence. In order to clarify this to the employee, the “internet/email/telephone” clause could set out the position to the employee in relation to this.

An employer must take reasonable steps to prevent harassment in the workplace. This extends to social networking sites and there must be clear guidelines to acceptable conduct in this respect. An employer would be wise to have a harassment policy in their company handbook which covers such instances and set out any procedures that will be followed in the event that an employee reports harassment by another employee.