In his article Employment Solicitor, Will Chrusciel looks at some of the issues that businesses must consider when dealing with the world of likes, tweets and shares - as well as potential pitfalls to avoid.
However, it can be difficult to navigate some of the legal implications of social media in the world of business. In the UK, the use of social media platforms such as Facebook, Twitter, LinkedIn, TikTok and Instagram is more widespread than ever - and their influence has spread into the workplace.
With some analysts estimating that social media misuse impacts the national economy to the tune of over £1 billion annually (source: The Telegraph), it is prudent for businesses to set expectations and limits on the digital behaviour of employees.
What is a social media policy?
Every employer’s use and exposure to social media will differ, but the widespread use of social media by employees means that having a social media policy is often advisable.
A social media policy lays down the ground rules for social media use by employees, such as making a clear distinction between the use of such platforms for personal or professional purposes. It also sets limits on what employees are allowed to write on social media when representing or talking about the business. A social media policy might also address and limit the use of social media platforms or smartphone devices in the workplace or during work hours, and set out how the employer will monitor the use of work-related social media.
Notwithstanding the above, social media is an integral part of life in the modern world, and a balance should be sought to ensure that employees do not feel stifled by unfair and disproportionate constraints on their use of social media.
Public authorities in particular should be mindful of Article 8 of the Human Rights Act 1998 which states that everyone has the right to respect for their private and family life, their home, and correspondence. This means that restrictions on social media use by employees should be proportionate and generally not infringe on an employee’s right to enjoy these platforms outside of their employment.
Social media policies are also useful for businesses looking to ensure the protection of sensitive data and/or trade secrets. Whilst it is sensible for employers to safeguard their business interests and information via carefully-drafted post termination restrictions within the contracts of employment of relevant employees, a social media policy can complement such restrictions and expand on other more specific issues (e.g. the expectations when a departing employee is personally “connected” to clients on LinkedIn or other networking platforms). A social media policy can, therefore, provide an additional means in which an employer may place restrictions on the social media connections of current or former employees in order to safeguard legitimate interests.
To ensure the usefulness and visibility of a social media policy, it is imperative that staff are made aware of the existence and content of such a policy, and furthermore are directed to any updates or changes which are introduced.
Social Media and remote working
The UK has seen a revolution in working practices during the COVID-19 pandemic, with a dramatic increase of employees working from home. In this regard, employers are faced with a greater difficulty in monitoring employee’s online practices and managing the associated risks. Again, this heightened risk points to the importance of having a clear, proportionate and up-to-date social media policy in place – with employees being clear of what is expected of them.
Employers could also consider the potential benefits of communication between employees via social media (using employer-approved channels) in fostering a more cohesive workforce in the context of remote working.
Social media and recruitment
When selecting candidates for an interview during a recruitment process, it is tempting for employers to search for applicants on social media in order to obtain additional information on their suitability for the role.
Employers should, however, exercise caution when doing this, as it can be easy to fall foul of the law. In particular, employers should be alert to the potential for discrimination claims and data protection issues that may arise from this practice.
For example, a recruiting employer may discover from an applicant’s Facebook page or Twitter account details connected with one of the nine protected characteristics (such as disability and age) or that they are in dispute with a former employer in connection with a discrimination claim. Discrimination (including rejecting a job application) on the basis of any one or more of the nine protected characteristics or victimisation on the grounds that a discrimination claim has been brought is illegal. If the applicant is ultimately unsuccessful, and the reason for this is not objective and backed up by legitimate reasons (with an associated paper trail), the business may open themselves up to costly discrimination claims and litigation, but also adverse publicity and reputational harm.
In a similar vein, employers should be aware that an applicant is able to submit a data subject access request under the UK General Data Protection Regulation for their personal data, which may provide evidence of the employer’s decision-making (including if a refusal has been on a discriminatory basis).
Ideally, if businesses do review social media profiles, this practice should be consistent and “as standard” rather than selective, which will help businesses to avoid any suggestion that choosing to look at that applicant’s social media pages (and not another applicant’s) for more information in particular is discrimination in itself.
Employers should therefore be very cautious when navigating this area, and seek specialist legal advice. Employers could consider informing candidates in advance that their profiles may be checked for additional information. The UK General Data Protection Regulation (GDPR), which polices how data should be collected, handled and stored, should be followed at every avenue to avoid enforcement by the UK’s regulator of data protection, the Information Commissioner’s Office (ICO) and costly litigation.
Social media and business reputation
Under UK law, if an employee carries out an act of discrimination during the course of their employment, it is possible for the employer to be held “vicariously liable” for that conduct and sued directly by the victim of the discrimination in question. Cases before the courts have identified that this vicarious liability may be placed on the employer even when the discriminatory act took place outside of usual working hours and places of work provided that it has a sufficient connection with the workplace e.g. at social events or office parties.
This can also extend to the postings on social media by staff – and as such an employer should look to put in place policies and training materials to let staff know what will be considered unacceptable conduct on social media sites.
Employers should also consider regulating how staff communicate amongst themselves, and ensure that all work-related discussions are conducted through employer-approved channels. It may be appropriate to remind staff that something shared privately in a closed group of social media friends may entail a specific context which may not be immediately obvious if this was shared publicly for the world to see.
Employers should not shy away from confronting the risks presented by social media – be it reputational damage, the risk of discrimination claims, or data breaches. Employers should seek to proactively implement clear policies and communicate their expectations around the social media activities of employees.