In August 2010, Personnel Today reported that over 50% of employees revealed they used social networking sites within working hours with about 6% spending more than an hour per day on these sites with the associated loss of productivity. (Personnel Today 5th August 2010)
This follows newspaper headlines in July which reported the fact that there are over 26 million Facebook users within the UK, to say nothing of other social networking sites such as My Space, Twitter and Bebo. At the same time the business network LinkedIn has a worldwide membership of 65 million. At least some of these individuals will be working in your organisation. The growth of social networking sites creates not only advantages but also raises a number of legal issues and potential headaches for employers.
To the uninitiated, the primary function of LinkedIn is to share business connections with other members. As a consequence it is much easier for individuals to access and retain commercially sensitive data about business contacts.
For example, a salesman can diligently enter each customer as a connection on LinkedIn. If at a later date he wishes to work for a competitor, then with a few clicks of the keyboard he can access his full list of LinkedIn connections.
This raises a number of legal issues surrounding the protection of confidential data and compliance with express and implied obligations of fidelity, confidentiality, non-solicitation and non-competition. The employer in this situation faces a number of hurdles if he wishes to protect his information, not least whether the connections on LinkedIn can properly be regarded as the employer's confidential information once they are on LinkedIn. Do the connections belong to the employer and are they confidential?
Although untested there is a strong argument that they are not in fact confidential, not least because they are readily accessible to anyone with an internet connection and rarely contain information which may be regarded as confidential.
Whilst an individual's profile may not be confidential there seems a stronger argument for the way information is gathered together, for example, a list of connections may create a proprietary interest. Unfortunately for the employer the list of connections will already have been disclosed to a large number of other connections, most likely, with the employer's consent.
"Traditional" methods of controlling social networking sites such as blocking or banning access to sites during working time may be counterproductive given the obvious benefits associated with LinkedIn.
Brand issues
Another common query from employers has been whether they have the ability to dismiss or discipline employees for posting personal information which is believed to be inappropriate or damaging to the business. Whilst the head of MI5's (John Scarlet) Speedos were not considered ultimately a bar to promotion, lesser mortals have been less fortunate. Employers must balance the employee's right to a private life with the right to protect the reputation of the business.
Note the decision in this context by Virgin Atlantic to sack 13 staff who posted remarks calling passengers "chavs". Another high profile incident involved 76 staff who were reported as participating in a Facebook discussion board where customers were described as "idiots" and "cheap little b*****s".
In these types of cases an employer may be able to show that taking disciplinary action or dismissal was reasonable in the circumstances. Important factors would include how widely the comments were circulated and the choice of forum. An open discussion forum being more damaging than comments between a small group of friends. However, given the widespread publicity of social networking, it can only be a matter of time until these matters have been formally tested in the employment tribunal.
"Flame mail"
The growth of cyber bullying has been well reported over recent years and again sees no sign of decline. As far back as July 2007 a survey for the CIPD reported up to 1 in 10 employees felt that they had been the subject of cyber bullying at work. Employers have an obligation under both health and safety and employment legislation to ensure a safe place of work. It is therefore imperative that they make sure they take reasonable steps to protect employees from harassment and social networking sites which can be used by workplaces' bullies.
And finally monitoring...
A number of the issues discussed above will only be uncovered by employee monitoring. Employers are entitled to monitor but only in compliance with stringent rules and procedures. Overzealous monitoring not only risks unfair constructive dismissal claims but may also be the subject of enforcement action by the Information Commissioners Office under the Data Protection Act.
Employers must ensure that covert monitoring is carefully controlled in situations where employees have a high expectation of privacy.
Public sector employers must also bear in mind Article 8 of the European Convention on Human Rights which creates a right to respect for private and family life and correspondence. Mistakes could be expensive. Since 6 April 2010 the Information Commissioners Office can fine offending employers up to £500,000 for breaches of the Data Protection Act.
The implementation of clear polices and guidance is the only way for employers to protect themselves against such risks.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
