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A presentation given by Neil Buck and Rob Powell The PersonnelDept at the BizGen Conference and Expo Lincoln
Social Media -Employer Considerations Neil Buck & Rob Powell 25th October 2011
In 2006 TUC described Facebooks 3.5m users as "HR accidents waiting to happen” In the UK, there are now: • Over 30m Facebook users • Over 4m LinkedIn members • ? Twits out there?!
Benefits of SM Use• Positive image of a business into the public domain.• Networking with other professionals may lead to business opportunities.• Openness to/ use of modern forms of communication may enhance the employers appeal for recruitment purposes.• Provides a rich vein of information about candidates on recruitment and can also provide evidence in cases involving the employee.
Key IssuesInclude:• Employees who act inappropriately in their “private” life• Employees who criticise their employer online• Bullying and harassment using social media• Proving culpability where employees dispute their involvement• Ensuring consistency of treatment• The impact of human rights and data privacy laws
Legal Risks• Discrimination• Confidential information• Recruitment & Data Protection• Loss of Productivity• Loss of Reputation• Privacy
DiscriminationEmployers can be held vicariously liable fordiscrimination by their employeese.g. comments are made about another employeeonline that amount to harassment, liability can arisefor the employer, whether or not the employee isusing the employers equipment.
Confidential Information• Employees may post confidential information online• One potential problem – LinkedIn contacts - clients still confidential?• Who does it belong to – e‟er or e‟ee?• Can the employer get access?• Can the employee breach non-solicitation RC‟s after employment by using the contacts?
Recruitment• No legislation that prohibits employers from considering information from e.g. an individual‟s Facebook profile when recruiting BUT• Possible discrimination claims if the information is used to reject a candidate• Possible DPA breach re processing anything gleaned from profiles if it records or uses the information.
Loss of Productivity• Access to SM during work time can lead to reduced productivity. If it is permitted, the parameters need defining.• Aug 10 - Report by My Job Group („Social media in the workplace‟) and based on a survey of 1,000 respondents. Time on social media sites: - 55% admitted accessing these sites while at work - 16% spent over 30 minutes and - 6% spent an hour or more per day
Loss of Reputation• Main concern is to protect its reputation, butdamage will often be speculative and difficult tosubstantiate. Furthermore, the employee may beusing his own equipment in his own time?• Protection v Right to Privacy??The BIG Q – is it proportionate and therefore fair todismiss an employee for what has been done orreported online rather than whether the employeehas retained his or her right to privacy.
Privacy• Collision - Employers desire to protect v an employees rights of privacy and freedom of expression. s98 of the Employment Rights Act 1996 must be construed in a way which is consistent with the European Convention on Human Rights (the Convention).• If an employer dismisses an employee in breach of those rights, dismissal could be disproportionate and therefore unfair.
• Private life includes social interaction and the right to develop relationships with others, even at work.• Early cases suggested that if the employee put his information in the public domain, he lost his right to privacy under Art 8 of the Convention. Later cases suggest it is not quite that simple. Since all UK legislation must be construed in a Convention- friendly way, what is "public" for these purposes will also inform what "public" means under the DPA.
Recent Cases• Preece v J D Wetherspoons PLCET found dismissal FAIR• Whitham v Club 24 Ltd t/a VenturaET found dismissal UNFAIR• Both cases involved Facebook entries
Distinctions between the two cases can be madein a number of ways:• Preece posted comments whilst actually at work whereas Whitham did so outside work hours• Preece also named her customers when expressing her views on them. Whitham, by contrast, did not name anyone• Wetherspoons had a clear and detailed social media policy which expressly referred to the use of social media whilst at work and stated that disciplinary action could be taken if comments on sites such as Facebook "lower the reputation of the organisation, staff or customers…" and that failure to comply with the social media policy could amount to gross misconduct. Conversely, in Whitham there did not appear to be a policy and they overlooked parts of her contract, such as whether they could demote her.
SOLUTION• Introduce a Social Media Policy including,• Rules about accessing social media sites at work: when and for how long?• Information about what monitoring may be undertaken by the employer and the uses to which the results may be put.• A reminder to employees that they must not disclose confidential information or trade secrets on such sites or make derogatory or discriminating comments about the company, their colleagues or their clients, on such sites, whether those comments are made at work or outside the workplace.
• A reminder that employees should not misuse other employees personal data in online media.• A requirement that employees insert a disclaimer into any blog or posting stating that any views contained in it are those of the employee and are not representative of the employers views.
FREE SOCIAL MEDIA POLICYJust come and see us at the stand.
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