The legal issues
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 their 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 such as 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 to outline the rules so that everyone in your business knows how to tackle the risks associated with employees’ social media use.
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 (ie information about an individual from which they may be identified) 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, the employer must provide the applicant with an information notice, also known as a 'privacy notice' or 'fair processing notice.' This notice must set out 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 Information Commissioner’s Office (ICO), the UK data protection regulator, requires that you comply with the data protection rules on pre-employment vetting in order to use social media searches in recruitment. This means you should only do it to obtain specific necessary information where no alternative exists. You should tell a 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 a policy setting out the length of time that recruitment data collected from social media will be retained. The policy should cover whether the employer uses information from candidates' social media profiles to make decisions and the legal basis for collecting the information. It should also state that any data collected from the profiles will be deleted once a recruitment process has finished.
Disciplinary action and social media
Taking action against staff based on their conduct on social media platforms can infringe upon an employee's human rights to privacy and freedom of expression, and will only be allowed where reasonable, such as 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 behaviour, warning that disciplinary action might be taken.
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.
Employee use of social media in a personal capacity
Employees’ personal use of social media can, via their association with their employer, impact the reputation of their employer’s business. If an employee uses social media to demonstrate conduct or to express opinions that their employer does not agree with, the impact on the employer’s business can be negative.
To help avoid this happening, employers should advise employees to refrain from disclosing their connection to their employer on personal social media accounts.
Where this is not possible, it may be appropriate for some employers to recommend that employees add a disclaimer (eg a ‘views expressed disclaimer’) to their personal social media accounts to make it clear that the employee is speaking in their personal capacity and not as a representative of their employer’s business. For example, the employee could add to the information section of a social media profile text such as ‘all opinions shared on this account are my own and not the views of my employer.’