Social networking sites like Facebook and Twitter can create problems at work for both employees and employers. Gagandeep Prasad provides an overview of the problems and explains why employers need an internet policy.
THE PROBLEM
We're recuiting staff and I've been checking candidates' Facebook pages. Is this OK?
THE LAW
Using such sites for recruitment raises several issues. First, there is the risk of potential discrimination arising out of the age profile of internet users. If employers adopt a policy of online applications only it is likely that many older candidates will be excluded before the recruitment process has even begun. If faced with an age discrimination claim, an employer would have to seek to justify this approach.
Second, there is the issue of pre-employment vetting, which is what trawling through these sites on receipt of an application is. This raises both discrimination and data protection issues. For example, there may be information obtained from these sites that relate to an individual's sexual orientation, or religious belief that impact, or are perceived to impact, on the eventual decision whether or not to recruit. Information that impacts on recruitment decisions in this way will be grounds for a discrimination claim.
Third, what about verification? What weight do you place on the information found? The Employment Practices Data Protection Code makes clear that an employer should "not place reliance on information collected from possibly unreliable sources".
Such searches are effectively pre-employment vetting and the code states that employers should "only use vetting as a means of obtaining specific information, not as a means of general intelligence gathering".
Social networking sites also raise other issues such as whether or how to monitor employees' use of the internet at work. Employees have no general "right" to use sites such as Twitter, during working hours. Most employers as a matter of policy allow a limited amount of personal use during the day, but it tends to be limited to lunch hours and breaks. If employers randomly monitor internet usage, it is crucial that employees are aware of this.
There is also the issue that an employees' use of Facebook or Twitter, even if outside of work hours, can mean that there is damage to the employer's reputation, possible disclosure of confidential information and potential vicarious liability for any discriminatory behaviour by an employee of another employee. All these risks apply even if the employee is tweeting outside of working hours.
Employers may be able to take disciplinary action if comments are defamatory and there may also be scope for libel proceedings or seeking an injunction to have the offending comments removed. Any employer action though will need to consider the employee's right to freedom of expression which will arguably cover the ability to complain about work, provided it is not discriminatory, damaging or libellous. There are many complex issues at work here so taking proper advice is key.
EXPERT ADVICE
- When recruiting, if information is found about a candidate on such sites, ensure that the code is complied with.
- Have in place a clear equal opportunities policy which sets out the principles by which any recruitment decisions are made.
- Consider the internet policy to be adopted and whether access is to be limited.
- Consider whether you wish to adopt a code of conduct on the use of such sites.
CHECK LIST
- Draft clear policies to deal with internet usage and the employer's right to monitor internet use. Be clear about what use is permitted. For example, if a particular internet site is not allowed, then details of the ban need to be made clear, as do the consequences of breaching the policy.
- If you plan to monitor usage, this must also be made clear to the employees.
- This is an area that is increasingly complex, so take advice.
CONTACT
Gagandeep Prasad, solicitor, Charles Russell
E-mail: gagandeep.prasad@charlesrussell.co.uk