What you should know about social media, your employees and the law

It doesn’t matter whether your company is active on social media platforms. Your employees certainly are.

So whether you are prepared or not, whether you engage on social media or not, you should update your procedures and practices.

Here are a couple of basic questions you should already be facing head-on:

Can I use social media to ‘vet’ candidates for roles or monitor existing employees?

As of yet, there is no law preventing an employer looking at an individual’s social media profile and considering it in an employment context.

However, existing data protection laws and discrimination laws do draw some lines as to how and what information can be considered.

Anything found on social media sites falling into categories covered by the Equality Act 2010 (such as gender, sexual orientation, age or ethnicity) cannot be used to discriminate against the employee or candidate.

Likewise, any information garnered from such a trawl of social media, if recorded, should be kept and stored subject to the strict Data Protection Act 1998.

As this area of law is fairly complex and still evolving, the best practice would be to ensure any recruitment and/or employee monitoring practices are transparent and communicated clearly. This should be done through your internal policies or at the advertisement stage of recruitment (if checks are performed).

Another rule of thumb is to only look for information genuinely useful and relevant to the job or continued success in the role.

Remember, any information filed away on an employee has to be disclosed to them if requested. So first ask the question, “Would I be happy for him/her to know I had this information?”

Is the employer responsible for its employee’s behaviour on social media?

To a certain extent, yes.

Employers should make clear from the beginning of a contract, what the company’s policy is on social media and what behaviour is expected.

Recent case law suggests that during such disputes between employers and employees, courts will take into account the impact of any actions on the employer (such as loss of reputation, disclosure of confidential information and loss to profits) and rule in favour of employers if action taken by them is in proportion to this impact.

In issues related to cyber-bullying or harassment between colleagues, there have been a number of cases whereby the employer has been held responsible for their employees’ behaviour. This may be the case if the harassment has taken place in the workplace and during work hours.

The best way for an employer to ensure they are not held liable for such actions, is to ensure that the policies are clearly communicated and easily accessible to all. Have a policy in place for internal complaints, and set up an effective (but well communicated) monitoring system to deter employers from potentially negative conduct.

It’s important to consider such issues now, as these factors will usually be taken into account during court proceedings to assess the employer’s responsibility.

What do you think?

Do you have social media policies in place?

It’d be interesting to hear which social networks companies are monitoring, if any. Do you stick to Facebook, LinkedIn and Twitter, or cast your net a little wider?

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