Articles | Social networking sites… employers beware!

Social networking sites (SNS) have fast become new marketing and business development tools with companies embracing the contacts and potential business opportunities just a few clicks away.

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Ian Machray

Ian Machray

Employers beware!

A small tea room in Greater Manchester recently made the newspaper headlines showing us all how not to use SNS after it reportedly sacked a teenage worker from her job via her Facebook page.  Despite offering to pay back the £10 she had lost whilst on an errand, the girl was sent a Facebook message by her manager informing her she would have to be let go.  There is no mention of any disciplinary or investigatory action.  Instead the tea room brought an unsightly spotlight onto its employment procedures, as well as leaving itself at risk of a claim.

Defamation. Until now most headlines involving employment issues on Facebook have featured employees making derogatory comments about their employer, or, worse, customers. For example:

  • Darren Bent almost scuppered his transfer from Tottenham Hotspur to Sunderland after letting off steam about delays with his transfer in an online rant on Twitter;
  • A prison guard was dismissed when it was discovered he was friends on Facebook with a number of current and former inmates of his prison;
  • Argos dismissed an employee for creating a Facebook group “I work at Argos and can’t wait to leave because it’s sh*t”;
  • Employees at PC World posted comments on Facebook such as “chatting up customers”, “some customers are really, really stupid!”; and
  • A teenage office worker was dismissed after describing her job as "boring" on Facebook. 

Employers should ensure their policy reminds employees that the company's ethics and confidentiality statements apply to SNS too, whilst they're at work as well as in their personal time.  The policy should also provide the employer with the ability to take action if an employee posts something that brings the employer or employee into disrepute, damages either's reputation, breaches confidentiality obligations or risks destroying the relationship of trust and confidence between employer and employee.

A precedent has now been set for the courts to award damages for libel and breach of privacy after a fake personal profile and group were set up on Facebook.  Amongst a mixture of true and false information, Mr Firsht was falsely stated to be gay and was added to a number of gay Facebook groups.  There had also been a group set up in his name called "Has Matthew Firsht lied to you?" where the group made false and defamatory allegations about the ability of Mr Firsht and his company to pay their debts.

Who owns the content?

With more companies using SNS in the workplace, new copyright and confidentiality issues are materialising.  Without a clear internet policy in place, many employees are unaware of the implications of uploading their employer’s contacts to sites like LinkedIn, particularly after their employment with that employer terminates.  Indeed some companies may inadvertently make such information publically available to all unless they ensure all their employees hide their connections.   In a recent case, a recruitment agent deliberately migrated confidential information to his LinkedIn account whilst employed at Hays with a view to setting up his own company in direct competition.  He had thought that once the contacts had been invited and they had accepted, their contact information ceased to be confidential because it had been seen by all his other contacts.  However it was held at first stage that the information could be considered confidential and he was ordered to disclose all his documents such as emails and communications sent to or received from his LinkedIn account.  Clearly, Hays would have benefited from a policy governing SNS.  Employers should take heed from this case and consider the rules they want their employees to abide by, particularly in relation to whether connections will be viewable or should be hidden, who will own the connections employees make and what happens to the connections when an employee leaves.  Clear guidance on the acceptable level and type of usage and consequences of breach will help to protect employers as well as clarify what  employees can do.  

In addition to the question of ownership between employer and employee is the issue of ownership between user and the SNS. All SNS will have terms of service but many people sign up to these sites without checking the copyright and intellectual property clauses.  If users did check them, they would realise they are agreeing to grant the SNS provider a licence to store their data as well as broad powers to use the data without getting any further consent from users.   Each site also has its own take on what happens to that licence when users delete information or their account from the site.  For instance, on Facebook although a user may decide to delete their account any information they have posted or shared on another person's wall, group or forum etc will remain visible on those pages until the owner of that page deletes it. 

Employees should beware - their actions will be trackable even after they have deleted the obvious pages or connections.

Vetting

As information is posted voluntarily on SNS such as Facebook, many employers believe the use of that information is not a violation of the user's privacy.  However, the growing trend for employers to check a potential candidate's Facebook page in the selection process puts those employers at risk of discrimination claims.  Information such as ethnicity, sexual orientation, religious and political views and age are no longer requested on job application forms as employers do not wish to know information which could render a decision discriminatory. Any decision made after seeing that type of information on a Facebook profile has the potential to be discriminatory.  It would therefore be wise to avoid vetting candidates in this way or at the very least ensure that the person viewing the Facebook page is not part of the decision making and only passes on non potentially discriminatory information.

Data protection

Data protection laws dictate that if you are processing data, you are only allowed to use it for the purpose for which it was intended. An employer must be careful to not store information in personnel files from websites such as Facebook or LinkedIn without consent or they risk unlawful processing of data.