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Usually, employers will be liable for what their employees do on social media in connection with their employment; so if use is illegal, defamatory, bullying, discriminatory, breaches copyright or confidentiality or otherwise causes a legal problem, then the employer is on the hook.

Increasingly, employers want to examine and make use of information from employees personal social media usage to make employment decisions. This raises difficult issues of discrimination, privacy and data protection.

Allowing employees to store work-related information and contacts on non-employer databases like Facebook or Twitter makes it harder for employers to prevent misuse of client and contact information after employment ends. Consider prohibiting this.

Consider having a social media policy in place which outlines the rules so that everyone in your business knows how to tackle this area.

Managing employer liability for social media use

Control which employees can operate employer social media accounts. Train and guide employees about the sorts of media use that are legally problematic and warn of disciplinary action if rules are breached. You should also implement rules about using the employer’s name and work contact details on personal social media so it is clear when employees are acting in their personal capacity.

Recruitment and social media

Using social media searches in your recruitment processes, if not done correctly, can be discriminatory, breach data protection rules, infringe rights to privacy and most of all may be wholly unreliable. Only do this if you have proper processes in place. When an employer collects personal data about an applicant during a recruitment process, whether this is directly from the applicant on social media or from someone else such as a recruitment agency, it must provide the applicant with an information notice, also known as a 'privacy notice' or 'fair processing notice.' This notice must set out the certain required information, including the purposes for which the data will be processed, the legal basis for processing and the period for which the data will be retained. The employer could provide the information notice on its website, and send a link or copy of the notice in correspondence to individual applicants.

The UK data protection regulator considers that to use social media searches in recruitment, you must comply with the data protection rules on pre-employment vetting. This means you should only do it to obtain specific necessary information where no alternative exists. You should tell the candidate early on of your intention to do this. The search should be done at a late stage for shortlisted or confirmed candidates, not as a general screening process. Furthermore, it should be done proportionately and using reliable sources and comply with data protection rules for the information gathered.

Employers should put in place policies setting out for how long recruitment data will be retained that is collected from social media. The policy should cover whether the employer uses information from a candidate's social media profiles to make a decision and their legal basis for collecting the information from the candidate's social media profile. It should also state that any data collected from the profiles will be deleted once the recruitment process has finished.

Disciplinary action and social media

Relying on social media to take action against staff can infringe the employee's human rights to privacy and freedom of expression and will only be allowed where reasonable, in serious cases. To do this, you must first warn employees about monitoring of their social media use (eg by having a social media policy) and the types of prohibited behavior warning that disciplinary action might be taken. Read our guide on Social media policy.

In principle, the UK courts accept that employers can discipline or dismiss employees for private social media use that is damaging to the employer, in appropriate cases. In extreme cases, private information on social media about an employee’s conduct outside work may justify disciplinary action but cases justifying this will be rare.

If in doubt, Ask a lawyer about any of these tricky areas. 

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