Social media

01 May 2014

Updated May 2014

Gives introductory guidance on the legal implications of social media for employers. Covers disciplinary issues due to misuse, employees' right to privacy, the use of social media for recruitment including advertising jobs and assessing candidates, ownership of contacts made by employees and what employers can do to protect themselves including implementing a social media policy.

The spread of social media is such that employers now cannot ignore its impact. The most commonly used and most familiar social networking sites include Facebook, Twitter and LinkedIn. The explosion of these new means of communication has thrown up many issues for employers as the distinction between employees’ work and personal lives becomes increasingly blurred and difficult to untangle.

Some of the risks associated with the use of social media are as follows:

  • Bullying and harassment of other employees.

  • Exposure to potential claims for defamation.

  • Disclosure of confidential employer information. 

It is not all negative however. There are many advantages for businesses to be gained through the appropriate use of these tools to develop professional contacts and business opportunities. The challenge for businesses however is to balance the positives with the inherent risks and threats that social media also bring.

Some of the issues that employers might have to consider in relation to the use of social media are set out below.

For employers, the vast majority of situations where social media issues will come to their attention are where disciplinary matters arise because of its misuse by employees.

One of the earliest cases to come before the Irish Tribunals was Kiernan v A|Wear (UD643/2007). Here, the Employment Appeals Tribunal (EAT) had to decide whether the dismissal of an employee for posting disrespectful comments about her manager on the social networking site Bebo was proportionate.

One aspect of the employee’s argument was that her posting was private, being a message to her friend. In response, the employer said that the site was linked to the employer’s website. When the employer became aware of the postings, it initiated disciplinary proceedings. A disciplinary meeting was held in accordance with the usual procedures and the employee was subsequently dismissed for gross misconduct.

The employee then initiated unfair dismissal proceedings. The EAT held that, while the company’s disciplinary procedures were fair, the sanction imposed was not. It said that the sanction of dismissal was disproportionate to the offence. The misconduct deserved strong censure but was not gross misconduct. The EAT directed that €4,000 be paid to the employee.

This case clearly illustrates that, even if they have a fair and objective disciplinary procedure in place, employers must also ensure that the sanction applied is proportionate to the offence.

Similarly in the case of Walker v Bausch & Lamb (UD179/2008), the dismissal of an employee for posting a comment on the company's intranet site that 500 jobs were to go was held to be disproportionate, particularly as the employee did not seem to be aware of the company's internet policy.

In contrast, in the decision of O’Mahony v PJF Insurance Limited (UD933/2010), the EAT found that the posting of derogatory comments by the employee about her employer amounted to a breach of trust justifying her dismissal.

The most recent case from the EAT,  Jane Loughran v Mullingar Electrical Wholesale Ltd (UD1098/2012), in April 2014 saw an award of €7,000 being directed to a marketing assistant for her dismissal for use of social media during the working day. The EAT found that the dismissal was unfair as there was no social media policy in place and was also lacking in procedural fairness as no warnings were given.

One of the arguments raised by the employee in the Kiernan case above was that her posting was private, being a message to a friend. This raises the issue of a person’s right to privacy. This assertion is one which is pleaded in the majority of social media cases.

The European Convention on Human Rights, which was implemented in Ireland by the European Convention on Human Rights Act 2003, appears to suggest that the default position is that an employee is entitled to privacy. The Courts and Tribunals have made it clear that whatever privacy rights exist are not absolute and are subject to the duties of employees to their employers even when social media activity occurs outside work and on their own IT systems, such as their own handheld devices.

Another aspect of social media which is slowly creeping into the employment sphere is the fact that it may be relied upon as a tool for recruiters and job seekers alike. It is also playing an increasingly important role in how jobs are advertised and candidates are assessed. There is a huge amount of information available in the public domain from social media sites, such as LinkedIn or Facebook, which may be of great interest to recruiting employers and recruitment agencies.

There is no legislation in Ireland that expressly prohibits employers from using information gained from social media sites in the context of a recruitment decision. Recruiting employers, however, need to be in a position to state convincingly that they did not discriminate on the basis of any of the prohibited grounds in the Employment Equality Acts, 1998-2011 when making a decision if they have looked at information relating to a candidate’s nationality, age or family status online.

Employees are sometimes encouraged to use social media in the course of their employment, particularly in the marketing and recruitment sectors. This, in turn, raises a number of issues as to who owns the information on contacts made by employees during the course of their employment.

This question has yet to be addressed in the Irish courts. 

However, the Data Protection Commissioner's Annual Report for 2013 identifies this as an issue in one of its case studies. A former employee had taken a client list with them to their new employer without any knowledge or authorisation from the previous employer or clients which amounted to a clear breach of the Data Protection Acts. The former employer had to inform the office of the Data Protection Commissioner of the policies it had in place to prevent such breaches of client security, demonstrating the importance for employers of having appropriate policies in place to address such matters.

In a UK case in 2008, a former employee of a recruitment agency was ordered by the High Court to hand over business contacts which he had built up on his personal LinkedIn page while working for the agency.

This highlights the need for employers to be aware of the impact of social media on their businesses. Employers should consider addressing such issues in relevant clauses of contracts of employment such as restrictive covenants and confidentiality clauses.

Employers should consider taking the following steps:

  • The implementation of a sound social media policy is strongly advisable. Most employers already have comprehensive internet and email policies in place. Employers should update these to include reference to social media usage. See our factsheet on Internet use and misuse for more information.
  • Training guidelines should be provided. These should be used in inductions for new employees and refresher training for existing staff. Employees should be aware of the contents of the policy, that is, it should be a live document.
  • Contracts of employment should, where possible, incorporate social media issues into relevant clauses, such as restrictive covenant and confidentiality clauses.

The contents of a social media policy ultimately depend on the employer and the nature of its business. Certain employers are keen to ban social media entirely; others look to endorse it in a more positive fashion. Most, however, will strive to achieve a balance between engaging with it to maximise business opportunities while also protecting itself from any potential risk or danger associated with it.

What is clear is that Tribunals and Courts like policies. The best way, therefore, for an employer to protect its interests is to ensure that it has a clearly drafted and comprehensive policy in place so that it is in a position to justify any decision taken.

This factsheet was written by A&L Goodbody, Solicitors, IFSC, North Wall Quay, Dublin 1.

© A&L Goodbody Solicitors. The material is not intended to provide, and does not constitute, legal or any other advice on any particular matter, and is provided for general information purposes only.