Social media is no longer the bright shiny new toy of a couple of years ago. The initial rush to blog and tweet has passed. New platforms come along and spark some Pinterest (pinterest.com), while others like Google+ briefly flourish then fade. Businesses still face the perennial worry of employees posting inappropriate material on Facebook and Twitter.
Infringing privacy
A new trend among employers may be developing based on reports emanating from the United States. There some businesses have reportedly started asking prospective employees at the recruitment stage to disclose the login details to their Facebook accounts. In other cases employers have asked new recruits to “friend” an HR officer so that the company can gain access to what the employee is posting. Most people have their privacy settings arranged so that non-friends cannot read or share their posts.
Employers demanding this kind of personal information presumably hope to establish that the candidate does not have a history of making inappropriate comments about their previous employers, or to see pictures of them on the beach or decorating their houses when signed off sick. Few employees would wish to disclose login details, but may feel obliged (especially in a difficult job market) to do so, despite the massive infringement of their privacy, if it is intimated to them that the successful applicant will be the one that does co-operate with the request. Social media does blur the boundaries between the public and the private, but that is hardly justification for requiring employees to disclose their private communications.
It is also a dangerous step for employers to take as well. What will their searches reveal? Instead of disclosing pictures of the possible future Finance Director rolling around drunk in a gutter, it might disclose that he is gay, or that he has a disabled family member. If he is not selected for the role, or is dismissed from it following disclosure, the employer runs the very serious risk of facing a discrimination claim, even if its actions were not in reality motivated by that information at all. The same consideration applies to forcing employees to “friend” HR or senior managers. It must always be safer for an employer not to be taking part in employees’ private conversations just to avoid this risk. In my view the fact that the business might not be as quick to react when there is a problem does not outweigh the much greater potential for trouble if an employee subsequently claims to have been discriminated against.
Posting inappropriate material
Another tactic some American employers are reportedly using is to require new employees to sign a document to say that they will not post inappropriate material on social media networks about the company. On the face of it that does not sound unreasonable and suggests that the employer has given careful thought to social media usage by its employees and may have introduced the procedure as part of a wider social media policy. Many employers will require new employees to sign a contract of employment when they join (although there is no statutory requirement that they should) and that will probably contain clauses requiring the employee to maintain confidentiality both whilst working for the employer and once they have left in the future. That is unobjectionable. A contract of employment may also impose post-termination restrictive covenants on an employee, to stop them soliciting customers or recruiting other colleagues. Some contracts will contain non-compete clauses that are intended to prevent an ex-employee from working for a direct competitor for a period of time (usually three or six months). These clauses are a common feature of the employment law landscape and, depending on how carefully they are drafted and the actual circumstances of the employee, may or may not be enforceable. The point is that employers have long tried to regulate the behaviour of their employees outside the workplace.
The problem with requiring an employee not to post inappropriate material about the employer needs to be given careful consideration. Preventing disclosure of the employer’s confidential information is one thing: what about when an employee wants to express a reasonable opinion about the business or something that happened to them at work? That is a much harder area and employers need to be careful not to over-react. Disciplinary action must be “within the range of reasonable responses” or litigation may follow.
Significant issues arise though when employees use social media to “blow the whistle” on illegal or unethical working practices in the workplace, especially in the public sector. For instance, in July 2012, a nurse was suspended from her job at Biggleswade Hospital for posting on a Facebook page for hospital supporters
“Did you know Whitbread ward is down to two patients now??? Yet still SEPT [the Trust that employs her] deny that beds are being blocked. If it wasn’t so serious it would be laughable.”
For posting that comment and refusing to remove it she was suspended from duty and awaits disciplinary action for allegedly breaching the Trust’s social media policy. Ms Green claims that her right to free speech is under attack. The Trust will no doubt say that she was disclosing confidential business information or attacking the Trust’s reputation. There is not scope here for discussing whether her comment would constitute a Protected Disclosure within the meaning of the Public Interest Disclosure Act 1998, but if it does then a claim by her may arise under that Act, which potentially exposes the employer to the risk of an unlimited award of compensation if she were to be ultimately successful. It raises the interesting issue of whether employees (particularly in the public sector) who make comments on issues of public interest (such as the provision of care in the NHS) be granted greater latitude to make comments on social media than employees who merely “sound off”.
Employers need to tread a careful line and only take action when it is appropriate to do so. Disciplinary action should always be a proportionate response. However, going to the other extreme and doing nothing can also be dangerous, as Carphone Warehouse found out to its cost at an employment tribunal recently. They dismissed an employee, Mr Abraham Otomewo, for gross misconduct. In his claim for unfair dismissal he alleged that two of his colleagues had committed an act of sexual orientation discrimination against him by taking his iPhone without his knowledge during working hours, on company premises and posting a comment on Facebook saying “finally came out of the closet, I am gay and proud”. He was embarrassed and offended by the comment, which was untrue. The Tribunal held that the comments were made “during the course of employment”, because it was the work relationship which enabled the situation to arise. It demonstrates how wide the test for vicarious liability has now become. In the past no doubt the offending colleagues would have been judged to be “on a frolic of their own” and the employer would have avoided liability, but now tribunals and courts are much readier to impose vicarious liability on the employer. This case demonstrates that employers need to ensure not only that their social media policies prohibit this type of “horse play” conduct, but also that employees must secure their own electronic devices with passwords.
Conclusion
Social media usage is a minefield for both employer and employee. What may have been intended as a heartfelt and serious comment typed in the heat of the moment, or a seemingly harmless prank between colleagues can become much more serious when viewed by a wide audience of friends, “friends” and probably complete strangers many times on Facebook or Twitter.
For employers, many have received the message that a social media policy is necessary, but unthinking reliance upon it is insufficient. The employer needs to respond appropriately and reasonably to each situation. If a social media policy has been breached, consider whether any harm has actually been done. Has the employee apologised and/or removed the offending post? If so, dismissing for gross misconduct might be an over-reaction.
Employers should consider the reputational issues involved in taking disciplinary action against an employee, where more publicity might be driven to the resultant dispute than the initial Facebook status update or tweet. However, do too little, especially where the offending post affects another employee, and vicarious liability may arise.
Michael Scutt is a partner at 
Dale Langley & Co, a City-based specialist employment law firm. He is particularly interested in social media usage in the workplace. He also writes the Jobsworth and There May be Trouble Ahead blogs.
Email michaelscutt@dalelangley.co.uk. Follow on Twitter @michaelscutt.
