Social Networking at Work...the Legal Issues

Social networking sites such as Facebook and MySpace are more popular than ever and the practice of "blogging" (a form of publicly available on-line diary) has become widespread.  This trend can sometimes cause problems for employers who may wish to curb the extent to which employees indulge in such on-line activities whilst at work whether or not this is strictly speaking within their own time or whilst they should be working.  Employers might also wish to take into account the on-line profiles of applicants before deciding whether or not to make a job offer. 

The following represent a sample  number of common questions which employers may have in this area.

QUESTION:  Can an employer check up on a job applicant's on-line profile before deciding whether to offer a job?

ANSWER:  Whilst there is nothing in law preventing an employer from doing this, it is widely considered to be contrary to equal opportunities good practice and monitoring.  This is because certain personal information may be revealed which would point to the candidate's ethnic background, age, sexual orientation or religion which are all potentially forms of unlawful discrimination.  This could expose the employer to a discrimination claim if the candidate could show that the reason for not selecting him or her was because of a protected characteristic which was revealed by the on-line entry.

Whilst such a claim would be difficult to prove, given the potential risk involved, employers would  generally be advised against using this method in order to shortlist candidates. 

If an employer did decide to use this method, they would be wise to ensure that the reason for any refusal was not discriminatory. 

QUESTION: Can employers take action  in order to protect their business from employees who publish damaging material on a blog or networking site?

ANSWER:  A remedy may be available to the employer in the field of defamation in the same way as if defamatory comments had been published anywhere else.  If such comments are likely to damage the employer's reputation, disciplinary action including dismissal may be an appropriate course of action although employers will need to ensure that they adhere to rigid disciplinary/dismissal procedures.  Ideally, such matters should be included as part of the employer's disciplinary procedure and/or any computer misuse policy.

QUESTION: Can employers prevent employees writing blogs or using such networking websites whilst at work?

ANSWER:  Yes, as employers are entitled to prevent employees from using office equipment and internet connections for personal use.  Alternatively, it is possible to place restrictions on the types of site to which employees have access whilst using company computers.   Many employers have decided to block access to the most commonly used networking sites.   It is advisable  to set out a clear, formal policy on such internet usage as those who do not have in place any formal restriction on employee's access to such sites are more likely to encounter difficulties when seeking to dismiss an employee who exploits the goodwill and privilege in this regard.

It follows that employees may be disciplined and indeed dismissed if their usage is in breach of an express policy on such internet usage but in the first instance , a formal written warning is probably appropriate unless the activities involved highly offensive or pornographic material. 

QUESTION: Can employers face claims of harassment arising from communications between employees on such sites or via emails ?

ANSWER:  Employers can be held liable under the discrimination legislation for harassment of one employee by another if the conduct takes place during the course of employment and the employer has not taken reasonable steps to prevent this.  This is another reason why a formal written computer use policy is essential in order to enable employers to mount a defence against complaints of offensive conduct for which they might otherwise be liable.  Legal issues can sometimes arise concerning whether or not a particular activity took place "in the course of employment" in order to render the employer liable. In a recent case in the criminal courts, an air steward was convicted of harassing his former girlfriend and colleague after using Facebook to post offensive comments and humiliate her in front of family and friends. In these circumstances , the employer could also be liable if this harassment occurred in work time or on a work computer.  

QUESTION:   What items should such a policy contain?

ANSWER:  As we have indicated, employers should have in place an internet and email policy extending both to the use of social networking sites and blogging.  Such a policy should cover  the following areas as a minimum :-

• The amount of time which employees may be allowed for personal internet use and specific times of the day such as lunch, or before or after work.
• Consequences of employees publishing material which may damage the reputation of the employer or breach confidentiality.
• It should be made clear that any offensive, defamatory, discriminatory or other abusive comments will result in disciplinary action including dismissal.
• The policy should make clear to employees the nature, extent and reasons for monitoring internet and email usage and employees should be asked to sign a copy of the policy to indicate their consent to such monitoring taking place.
• Who is covered by the policy? This should include all employees at whatever grade as well as contractors, trainees, home workers and any form of agency staff.
• Password protection.
• Data security.
• Email etiquette and content.
• Personal use of emails using the employee's own work email address.

QUESTION: Can an employer insist that upon leaving, an employee surrenders all information and contact lists which may be created and stored on the work computer?

ANSWER:  A recent High Court decision provides that an employer is able to prevent a former employee from removing and/or using contacts which were stored on a database on his employer's  system provided that this did not include information which the employee had brought with them.  Thus,  if an employee uses a networking site as a means to develop professional contacts which have been made at work, these lists are likely to belong to the employer.  A critical factor in the decision which led to the granting of an injunction was that the information was stored on the employer's computer and email system.