The growth of social media sites, such as Twitter, Facebook, LinkedIn and Flickr among many others that come and go, has been so rapid over the last few years that legislation has been unable to keep pace with what is a communication revolution. While the rapid spread in popularity of these sites and their careless or even vindictive use has led to complex headaches for our legislators, their corresponding growth in the workplace has become a nightmare for HR managers.
Unions in the UK hit the nail on the head when they referred to Facebook as '3.5 million HR accidents waiting to happen'.
The main issues for HR managers are:
- Excessive use of social media during working time.
- The employer's vicarious liability if a message from one employee to another leads to claims of bullying, discrimination or harassment.
- The use by employers of social media sites to check up on job candidates.
- The protection of vital company information from its dissemination by employees through personal sites such as LinkedIn.
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Social media policy is vital
All employment solicitors stress that with regard to potential disciplinary action against an employee for misuse of social media sites, it is vital that the employers have a social media policy in place and that this be communicated to all employees.
Yet a recent survey by William Fry solicitors showed that 46% of Irish employers do not have a social media policy in place 'leaving themselves and their business open to internal disputes, abuse and potential litigation'.
The survey also found that over 80% of employees are spending 56 minutes a day accessing social media sites at work. Catherine O’Flynn of William Fry solicitors commenting on the survey also noted that, while 40% of companies have a ban on employees accessing such sites, the majority of employees ignore it.
'Accordingly, there is limited value in imposing absolute restrictions. Instead, companies should focus on defining realistic limits for access to social media in the workplace', advises O’Flynn.
In his Employment Law Update 2015, Terence McCrann of McCann Fitzgerald said that there needs to be an obvious connection between a social media policy and policies dealing with email and internet usage, remote working and own device usage, bullying and harassment, and disciplinary matters.
He said that the policy should specify to employees, whether they can use social media at work or not and whether such usage is at work or in their personal time, that employees should still be aware of their obligations not to bully or harass colleagues, not to disparage or bring into disrepute their employer and not to divulge confidential or proprietary information.
McCrann added that the policy can also specifically deal with issues arising from social media that potentially involve the employer’s proprietary information, for example, the building up of connections through LinkedIn which will include details of company clients, customers or suppliers that the employee has become aware of because of their employment with the company.
Who owns the information?
The William Fry survey on social media in the workplace showed that only 17% of employers have discussed with their employees the position regarding work-related social media connections when employment ends. The survey also noted that six out of ten employees keep work-related contacts and connections on their personal social media accounts but only three out of ten employers know what work-related social media connections their employees have.
This leads to confusion as to who owns social media accounts and the contacts on those accounts, noted William Fry.
The survey also notes that a staggering 73% of employers are not concerned that confidential business information may be posted on social media sites by employees.
Terence McCrann, however, makes the point that relevant questions concerning the protection of information such as LinkedIn connections 'have not yet been definitely answered by the courts'.
McCrann refers to a UK case Whitmar Publications limited v Gamage & Ors in 2013 in which three employees left Whitmar and set up a rival business. One of the former employees had maintained a number of links for Whitmar while she was in their employment. However, she refused to hand over the password or access to these accounts when she left arguing that she maintained them as a hobby and they were personal to her. Whitmar argued that they were used unlawfully in setting up a competing business.
The Court however, determined that she had maintained the accounts as part of her employment duties and the former employees were required to give Whitmar exclusive access to those LinkedIn accounts.
Abuse of social media
On disciplinary matters arising from the use or abuse of social media, McCrann says that the most common scenarios concern employees disparaging their employers online, damaging the brand or bringing it into disrepute, bullying and/or harassment and discrimination issues.
The head of employment law in McCann Fitzgerald stresses that if an employer does not have an adequate policy in place and drawn it to the attention of the employee, 'then the employer is very much on the back foot in defending any resulting claims'.
While most social media employment related cases emanate from the UK, McCrann refers to the Emma Kiernan v A-Wear(UD 643/2007) unfair dismissal case here. Here abusive comments concerning the employee’s manager were made on the Bebo site. While the comments were made outside work and to friends on the site, her friends' site was linked to the company’s site and the comment was seen by a customer who reported it to the company. The employee was dismissed for gross misconduct. The Employment Appeals Tribunal held that the procedures were fair but felt dismissal was disproportionate and awarded her the relatively low award of €4,000.
The Tribunal, however, backed the employer in O’Mahony v PJF Insurance (UD 933/2010) where again one of the directors came across an employee’s social network site which contained extremely disparaging comments about the director. In this case, the Tribunal upheld the dismissal as the personally offensive remarks amounted to a breach of trust of such significance that the employee’s employment in the company became completely untenable.
On employers' vicarious liability for comments posted on sites by one employee about another, McCrann referred to the much commented case in the UK – Otomewo v Carphone Warehouse. In this case, two employees of the company took another employee's iPhone without his consent and posted a message on his Facebook page that he was coming out as gay. The employee, who was not gay and was severely embarrassed by the posting, took a case against the company alleging harassment on the grounds of sexual orientation. The Employment Tribunal ruled that the action was committed by the employee’s colleagues in the course of their employment and the company was therefore liable for its employees' action and found in his favour.
Checking up on job applicants
More recently, employers rather than their employees have got into trouble using social media sites to check up on job applicants.
Terence McCrann urges employers to be extremely cautious before searching social media sites for information on job candidates. Should applicants be told they could be subject of a background check through social media sites, asks McCrann.
Under the Employment Equality Acts, it is discriminatory to ask a candidates age, sexual orientation, etc, so you have to be careful concerning the information you are looking for.
For example, notes McCrann, what if the search reveals too much information that one would not normally be seeking on a standard application form such as that the applicant suffers from a disability, is gay or is Muslim.
'Even if this information has no impact whatsoever on the employer’s eventual decision, if an applicant is unsuccessful and learns that the employer had access to such information, the employer will be on the back foot in trying to defend a claims based on discrimination law', says McCrann.
He also warns about the impact of privacy and data protection laws though he notes that there is no specific guidance from the Data Protection Commissioner in Ireland. However, he refers to guidance set down by the UK Information Commissioner for employers considering a background check including:
- Whether the employees is informed of background searches being undertaken.
- Whether the employee or candidate is given an opportunity to comment.
- That searches must be appropriate.
'Digital water cooler'
In an article on the pitfalls of social media for employers in the Cork Online Law Review, TCD law graduates, Rebecca and Ruth Keating concluded:
'The overriding advice to employers is to implement a social media policy and to ensure that employees are both aware of the policy and understand its affects. The greatest impact of the rise of social media exists in its ability to transport information quickly and easily. It is these two aspects which represent the most concern for employers. While many may fear the new rise of the 'digital water cooler' the real challenges to the world of employment are in the effects it will have on the traditional conflicts across all stages of the employment relationship.'