Social media has grown in use exponentially since Facebook was launched 16 years ago, and so has the risk to users. Daniel Piddington examines how employers can keep an eye on their staff’s social media posts without falling foul of the law.
Work MP Rebecca Long-Bailey was ‘sacked’ as of late from her job as shadow schooling secretary for imparting a meeting to the entertainer Maxine Peake on Twitter that had prejudiced hints. This is only one illustration of high profile people and organizations getting pessimistic exposure because of discourse shared on long range informal communication stages.
These slips up may be made sense of to some extent on the grounds that the law encompassing utilization of web-based entertainment strikes a balance between a singular’s work commitments, the right to a confidential day to day life and the right to opportunity of articulation.
It gets dangerous rapidly. Outlandish and over the top checking might actually break the suggested term of trust and certainty a business owes their representative, bringing about a valuable excusal guarantee.
Besides, while contemplating oversight of content, managers should guarantee that they are acting as per the General Data Protection Regulations (GDPR) and the direction gave by the Information Commissioner’s Office. A GDPR break could cost a business up to 4% of income.
Nor does the frequently utilized express “all perspectives my own”, on which many depend, cut a lot of lawful ice for a business; on the grounds that a representative’s post is situated on their own web-based entertainment account doesn’t mean a business can get away from risk for the post.
Responsibility under the Equality Act 2010 can emerge assuming a worker is considered to have acted “throughout their business”. The Supreme Court affirmed recently that a comparable test applies at precedent-based regulation: “whether the improper lead was so firmly associated with acts the representative was approved to do that, for the reasons for the risk of his boss, it might reasonably and appropriately be viewed as finished by the worker while acting in the customary course of his business”.
Monitoring social media
The starting point is to carefully consider why an employer might want or need to monitor an employee’s use of social media. Examples include:
- For marketing and advertising purposes
- To preserve business reputation
- To safeguard against bullying and/or harassment
- To monitor employees’ performance
- To ensure compliance with any post-termination restrictive covenants.
The ICO Employment Practices Code outlines that employers must be clear with their employees if they intend to monitor social media accounts. Covert monitoring will only be justified in very exceptional situations.
Employers are advised to communicate the nature, extent and reasons for any monitoring. If an employee’s role requires the use of social media on behalf of the company, their contract of employment should be clear as to the requirements and expectations.
In any event, a clear social media and electronic communications policy ought to be in place. Other policies, such as the disciplinary and grievance policy, bullying and harassment policy and the privacy and data protection policy all ought to be updated to account for the social media age.
Disciplinary proceedings
In England and Wales it is deep rooted that a worker’s utilization of online entertainment can be reason for disciplinary activity, up to and including excusal. The work advance court has affirmed that no exceptional principles apply to direct excusals emerging from utilization of web-based entertainment, and subsequently the test framed in s.98 Employment Rights Act 1996 and British Homes Stores Ltd v Burchell stays the test to be applied in thinking about the decency of any lead excusal. Acas has given supportive direction to managers via virtual entertainment and disciplinaries, which reminds bosses that any disciplinary approval should be proportionate to the apparent offense.
In any case, the requirement for alert couldn’t possibly be more significant. Difficulties to disciplinary authorizations can bring about exorbitant prosecution, either in the work council or in the common courts. So how could businesses limit the dangers? Coming up next is a rundown of variables all businesses ought to consider prior to making any disciplinary move because of web-based entertainment posts by representatives:
- Is there a policy in place? Have employees been warned that their use of social media will be monitored and could result in disciplinary action?
- What role does the employee have within the organisation? Does their role require the use of social media on behalf of the company?
- Is the social media account personal to the individual, or is it a business or work-related account?
- Can the employee be easily identified as associated with the business?
- Does the post specifically identify the organisation?
- What is the nature of the post?
- Is the information confidential or in the public domain?
- When was the post made, during work hours or in the employee’s own time?
- Has the post been deleted? If so, after how long?
- Who saw / could have seen the post?
- What impact did / could the post have on the employer’s business?
- Have there been other similar incidents and/or warnings to the employee concerned?
- How have other employee’s been treated in similar situations?
- Is there any relevant mitigation?
- How long has the employee been employed?
- What is the employee’s disciplinary record?
Internal disciplinary action may be just one step necessary for an employer to protect their business. Social media posts may trigger the need for defamation or libel proceedings. Equally, use of social media by exiting employees could result in breaches of non-compete or non-solicitation restrictive covenants. In such circumstances time is of the essence and urgent action may be required to obtain an interim injunction.
