Where Do You Stand With Social Media Law?

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With over half of the entire UK population having a Facebook account, employers are losing £14 billion per year as a direct result of employees accessing social media sites during work hours, yet their hands are tied when it comes to disciplinary action resulting in a minefield for employers and the rules of what is acceptable and what is not are very hazy.

Recent arguments presented by ACAS and the government profess social media is a sounding board of free speech that cannot be policed and certainly should not be a catalyst for disciplinary action. This is regardless of statistics showing that two million workers spend an hour of each working day social networking, with companies’ productivity suffering as a result.

Judith Fiddler, CEO of Direct Law and Personnel, a national firm specialising in law in the workplace, said; “The fact that Facebook, Twitter and Linked-In platforms are a public and easily accessible way to share thoughts can often mean that competitors, other employees and potential business leads could read information which presents employers in a bad light.”

Whilst this should make the situation very different and as a result, allow employers to confront their staff on such issues, the argument presented by ACAS takes the stance that should an employee have the same conversation over drinks, it would be classed as entirely private. So, should an employee write defamatory claims on the internet, update their status about shopping with friends after calling in sick or, in the case of the NHS, discuss patient details openly and obviously, it’s best for employers not to be looking.

Judith pointed out that It’s not all doom and gloom for employers; “Whilst ACAS acknowledge that employees have a duty to set their own privacy settings responsibly, this doesn’t take into account the fact that most of your workforce will be their Facebook family and any offensive comments against the boss, or management must surely be insubordination, which is grounds for dismissal.”

Dr. Meryem Duygun Fethi, member of The Efficiency and Productivity Research Unit (EPRU) at the University of Leicester, said: “Interesting, although over a third of respondents said they had criticized their workplace on social media, over half also said their employees should face disciplinary action for doing so.”

Employers are also being warned against researching potential candidates on Facebook or LinkedIn whilst at interview stage, as this can only lead to discrimination claims from potential interviewees. So much so, those individuals are increasingly making a ‘career’ out of taking businesses to court.

“Whilst 81% of respondents said potential employers should not be allowed to look at your social media profile before and interview, over a third of those asked, believe that employers can get an accurate picture of an employee from their social media profile. Thus reiterating a certain level of hypocrisy or confused attitudes towards social media in the workplace.”

These emerging social media channels are radically changing the UK workplace and it is now more than ever that recruiters and employees need a vital insight into how they can adapt to these changes, whilst ensuring that they have the correct HR procedures in place to deal with any malpractice.

Judith Fiddler said; “Employers must be over-cautious when recruiting as any online research could be deemed as discriminatory. Whilst few of these cases have already been decided at tribunal it seems the way tribunal judges viewed them won’t actively encourage a flood of claims or new outlet for serial claimants.”

She added; “Employees who have no intention of taking the role being interviewed for often seek claims for discrimination after being rejected at in the early stages on grounds of race, age, sex or religion, with employer after employer with the end goal being earning a living out of settlements.”

Despite the unquestionably problematic views on social media at the moment, the government stance could be set for reform as we see social media being drawn upon in criminal and civil trials both in the UK and US, and in turn, the same approach should be adopted during employment tribunals.

Judith said; “It just goes to prove that when one law closes another one opens and employers have the additional task of staying up to date to find out which side of the bed the government woke up on today.”

Whilst it looks like the future of social media claims is unpredictable, the government and ACAS are doing everything possible to reduce panic and, more importantly for them both, the number of cases in tribunal.

Direct Law and Personnel’s Top Five Tips To Deal With Employees On Facebook

1. Don’t make yourself look silly. Check whether the employee actually has work to do or that Facebook hasn’t been authorised by someone else.

2. Don’t ignore. You or a manager need to speak to the employee on an informal basis to start.

3. Keep notes of any usage, conversations or informal chats. You must take into account length of service, amount and type of abuse, time of day and pressure of work, policy and culture of the organisation when discussing employees conduct.

4. Check contracts of employment and office manuals. If you use social media or find you have issues, you need a social media policy in addition to these documents.

5. Consider blocking Facebook for all employees. This may need to be done on notice, without discrimination i.e. a blanket ban will depend on current custom and practice.