The following is a guest employment blawg post regarding social media use by employees and UK employment law.
Social media is changing the way we do everything, not least the way businesses are run. Social media now has a large part to play in sales, marketing, recruitment and public relations. Accordingly, UK employment law has to evolve to keep up the pace with social media particularly as some employers are finding it difficult to set standards of behaviour for their employees in relation to social media networking.
An employer’s greatest concerns are twofold: what are employees posting on social media sites and whether (and how often) employees are accessing these sites whilst at work. Employers are commonly faced with scenarios such as; where an employee calls in sick yet posts something on Twitter or Facebook implying something to the contrary, or situations where an employee says something negative or defamatory about the employer online or even employees checking LinkedIn whilst at work (LinkedIn is a website commonly used to for professionals to network and find work).
The Advisory, Conciliation and Arbitration Service (ACAS), who are the independent body responsible for helping to improve employment relations, have advised employers to take a common sense approach to regulating social media behaviour.
Social Media Policies
Employee’s explicit responsibilities, as far as social media networking is concerned, will be outlined in their employer’s social media policies rather than in employment legislation. Having a social media policy is important for both the employer and the employee so that both parties know where they stand. It will protect the employer against liability for its employees’ actions, will guide employees as to what they can and cannot say, promote compliance with the law and most importantly outline the employer’s disciplinary procedures, including examples of what might be considered a disciplinary matter and the likely sanctions.
Whilst some employers will have a specific social media policy (particularly larger employers), others will have a generic email and internet policy. Whilst having a specific social media policy will reduce any discrepancies as to an employee’s responsibilities, ACAS suggest that the most important element of a social media policy / internet policy is to draw distinction between business and personal use and if the latter is permitted to be clear about what exactly is allowed.
A good social media policy will cover the following:
- Remind employees of privacy settings, particularly that employers can and may view what an employee has written online
- A reference to the employer’s bullying and harassment policy
- If social media is used for business purposes, transparency about what information an employee can disclose and the opinions they can express
- Reference to relevant legislation such as copyright law
To get the best of employees and to maintain transparency and fairness, employers should update their policy regularly and when they do, they should consult with their employees so employees are aware of any updates (important considering how quickly technology changes).
Legislation
As stated above, UK employment law does not directly deal with social media (particularly beyond disciplinary matters). However there are some aspects of wider UK legislation that crossover into employment law, particularly in relation employers monitoring employees. For example, the Human Rights Act 1998 provides that people have the right to private and family life, a right that can be extended to include privacy in the workplace. Also the Regulation of Investigatory Powers Act 1998 details the extent to which organisations can monitor, record or intercept employee’s communications. Finally, the Data Protection Act 1988, which contains provisions on employers processing individual data and monitoring or retaining email communications.
Recruitment
A lot of recruitment is now done through social media, particularly through LinkedIn. Whilst there is no law preventing this, website such as LinkedIn do provide concerns about discrimination. By using LinkedIn recruiters and employers can view candidate information online that may not be available on traditional CVs such as the applicant’s age, race, religious views, sexual orientation and so on. Obviously, if an employer or recruiter has discriminated against an employee on any of these grounds then this is illegal, but it is very difficult for an employee to know or prove that they have.
Conclusions
Social media and employment law are at a very early stage and it is likely to be a few more years before there is some real transparency and guidance. The best course of action for an employer is to have a clear social media policy, explicitly pointed out to employees in their induction, so that employees can have little or no doubt as to what they can and cannot do.
If further guidance is required then both the employer and the employee can and should contact ACAS or an employment lawyer in the UK who can best represent your interests.
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