The popularity of Facebook and other social networking websites (such as MySpace and Bebo) exposes employers to a number of risks including potential damage to reputation, reduced productivity and vicarious liability claims. Jenny Wotherspoon examines how employers can address these concerns.
Topic: Working conditions
When: April 2008
Law stated as at: 16 April 2008
Social Networking – the Risks
Those who use social networking sites will no doubt admit that they can be highly addictive and time-consuming. As a result, there is an increasing tendency for workers to check and update their profiles during work time. A recent survey indicated the use of social networking sites by employees costs employers around £30.8 billion and 233 million hours of wasted time per year. Heavy usage could also impact on the performance of IT systems and provide an entry route for viruses.
If employees post inappropriate content on their profiles this may, if they identify their employer, lead to reputational damage to the employer's business. If such content is discriminatory or defamatory, employers could be held legally responsible for their employee's actions. In addition, if large groups of employees regularly discuss their work place in a negative manner this is likely to generate a damaging "gossip" culture which, at its worst, can also lead to "cyber" bullying.
There is also a risk of confidential information being accidentally disclosed to competitors by employees making ill judged remarks about their employers on such websites.
Can employers dismiss for inappropriate postings?
A common problem that employers face is the question of whether they can dismiss an employee for posting content which is inappropriate on social networking pages. Although most employees would argue that such activities, if carried out on their own time, are not the concern of their employer, this is not always the case.
In the case of Pay v Lancashire Probation Service the Employment Appeal Tribunal held that the probation service had acted fairly when it dismissed an employee who had posted footage of himself engaged in extreme sexual activities on the web. The employer took the view that such activities were incompatible with the employee's role as a probation officer.
In determining whether a dismissal is fair, a Tribunal will have regard to the seriousness of the alleged misconduct, the impact it has on the ability of the individual to carry out their role, the seniority of the individual involved and the reasonableness of the disciplinary process carried out by the employer. Each case will be judged on its own merits and employers would do well to take legal advice before proceeding to dismiss an employee in these circumstances.
What can employers do?
It has been reported that up to 70% of UK employers have banned employees from accessing social networking websites at work. This is particularly common in the public sector. Although this approach allows employers to address productivity concerns it does not prevent the risks of reputational damage caused by the use of such websites outside working time. Therefore, even if an employer opts for a ban on social networking sites at work they will still need to put in place policies to define acceptable use generally.
A number of employers have adopted a more lenient approach with some sectors actively championing such websites as an essential tool for marketing and maintaining existing client relationships. Others believe that whilst such sites are unlikely to have a positive business use employees should be trusted to regulate their own personal usage. If employers are prepared to allow employees access to such sites, they would be well advised to implement a policy setting clear boundaries for the acceptable use of and access to such information which should include a requirement that employees will not:
(a) Divulge confidential information relating to their employer;
(b) Post content which is potentially damaging to their employers reputation;
(c) Make statements which could be discriminatory or defamatory; or
(d) Engage in cyber bullying.
It would also be advisable for employers to explain to employees that their activities could adversely effect their reputation and the reputation of the business and that they run the risk of identity fraud if they post information on the web which is personal and/or confidential.
Employers may want to consider limiting access to lunch and break times if productivity is a concern. If employers are prepared to allow access for business use only an appropriate definition of such use will need to be devised. However, it may be difficult in practice to define where customer relationship building strays into personal use.
Employers should also make staff aware in their email/internet policy that they have the right to monitor internet and email use and employees should be asked to sign a statement to confirm that they consent to this.
As a matter of best practice employees should be asked to confirm that they will abide by their employer's email/internet policy each time they log onto their computer. Employers should make it clear that a failure to comply with this policy will be considered to be a disciplinary offence.
Why this matters:
The popularity of Facebook and other social networking websites (such as MySpace and Bebo) exposes employers to a number of risks including potential damage to reputation, reduced productivity and vicarious liability claims.
Employers who have to date buried their heads in the sand on this issue should now make it a priority to review their policies and procedures in this area to limit such risks.