Martin Cornforth considers the impact on the employment relationship when employees use social media at work and at homes

Social media refers to online networks that enable individuals to share and exchange an extremely broad range of information and ideas, the most well-known being Facebook, Twitter and LinkedIn.

Not only are individuals able to include a large number of people in their networks, but information may also go viral, particularly on Twitter. This might occur, for example, when an individual makes a derogatory comment that is shared by others. Social media or internet misuse may amount to misconduct for which an employee may be fairly dismissed.

Equally, employers are aware that social media can have a positive impact on their company’s reputation when used as a form of free advertising, but that it also has the potential to damage their reputation, particularly when employees make comments about them.

Given the impact of social media on the employment relationship, it is important for employers to draw up a social media policy that makes clear to employees what is, and is not, appropriate online behaviour in the workplace. 

Social media policy

  • This should clearly set out when the use of social media is permitted at work and should explain:
    which social media sites can be accessed
  • if certain sites can be used in work time and for what purposes (for example, some companies endorse the use of LinkedIn)
    • whether the employee should have separate accounts for personal and professional use, for example Twitter and how those accounts are to be used
  • what comments are unacceptable and inappropriate with regard to the impact on colleagues, clients, customers and the organisation’s reputation
  • what constitutes misuse and what amounts to misconduct and gross misconduct
  • which conduct will lead to disciplinary action and which may lead to dismissal.

Employers should also make clear that using social media to harass colleagues because of a protected characteristic (which includes age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation) is unlawful under the Equality Act 2010.

They should also set out the sanctions employees may face if they do harass a colleague on these grounds. In particular, they should clarify the circumstances that may lead to dismissal. Sarah Henderson’s article (Case law on social media) sets out how the test in unfair dismissalhas been applied by tribunals in some cases where misuse of social media has been found.

Employers should ensure that their social media policy is widely publicised within the company and that they provide training on it to employees and managers alike.

Human Rights Act

Although an employer may take disciplinary action against employees who misuse social media, they also need to take care that they do not breach their employee’s right to privacy and freedom of expression.

Although the Human Rights Act 1998 (HRA) is only directly applicable to public authorities, employment tribunals are obliged to interpret all legislation in a way that is consistent with the rights set out in the Act. This means that, even if a claim is brought against a private sector employer, tribunals have to consider whether there has been a breach of human rights when determining the reasonableness of the employer’s decision to dismiss.

Two provisions of the Human Rights Act are relevant in social media cases:

  • the right to respect for private and family life (Article 8)
  • the right to freedom of expression (Article 10).

Both rights are qualified rights, which means that the individual’s human rights can be interfered with where it is necessary to protect the rights and freedoms of others. 

Article 8

Although an employee may argue that their personal use of social media is private, a court may take the view that, once data is in a public forum, the individual has lost control of it and therefore does not have a reasonable expectation of privacy.

This could be the case even if the employee has high privacy settings and has restricted who can see their comments, not least because it only takes one person in the network to forward the comments on.

Where an employer has placed restrictions on the use of email for personal purposes during working time, it is unlikely that this would amount to a breach of the right to privacy.

This is particularly the case where the employee is using an email account that has been set up for professional purposes and therefore does not have a reasonable expectation of privacy in relation to that account.

Article 10

When determining if an individual’s human right has been breached, courts will consider if the interference corresponds with a pressing social need and whether it is proportionate to the legitimate aim pursued. This may involve undertaking a balancing exercise between the rights of the individual to express their views and the need to protect the employer’s reputation, as in the case of Kharlamov -v- Russia.

Employment tribunals are likely to find that it is proportionate to interfere with the right to freedom of expression where the employee has clearly made derogatory comments about the employer or their products, which may damage the reputation of the employer.

However, where a comment is made about the employer that is in the public interest, it is likely that a court would be reluctant to interfere with the right.

Employees may on occasion let off steam about a particular colleague or manager on a social network without any reference to the employer. Where this results in postings/ comments that are relatively minor, the courts may consider that there has not been any damage to the employer’s reputation. 

Data protection

While employers might well have legitimate reasons to monitor the use of social media by employees, they need to be aware that any information obtained in this way could be deemed to be “personal information” for the purposes of the Data Protection Act 1998.

The Information Commissioners Office has published an Employment Practices Code, which is available on its website and which provides guidelines to assist employers in ensuring that they are complying with the data protection principles.

The code recommends that, where an employer wants to monitor the use of social media by employees, they should communicate their reasons for doing so clearly, explaining the extent of the monitoring and how long the information will be retained.

It also suggests that employers can only carry out covert surveillance of social media use in exceptional circumstances, for example if there is evidence that a crime may be committed. This could potentially include evidence that an employee is harassing a colleague.

Employees who disclose material to their employer, which includes information about colleagues in their network, should be aware that the employer may not reasonably be expected to ignore it. Generally information should only be used for the purposes for which it was obtained but, where the disclosure suggests an employee has committed an act of misconduct or has the potential to damage the organisation’s reputation, it is likely to be reasonable for the employer to take appropriate action including disciplinary action. 

Conclusion

The use of social media clearly has the potential to impact on the employment relationship and employers therefore need to ensure that they have clear policies in place regarding its use. While employees have a right to privacy and freedom of expression this must be balanced with the employers’ right to protect their reputation and their obligation to prevent bullying and harassment in the workplace.