Our team supply the answers to the five most common social media problems you ask us about.
1 Can we prevent our staff from posting negative comments about our business and our clients?
You can discipline and in serious cases dismiss staff for posting negative comments about your business provided you have a policy which spells out what your staff can and cannot say about your company, its clients or users, or other people within the organisation. It is essential that your staff understand that these restrictions apply equally to information posted using their own phone/tablet in their own time, as those made in working hours using company equipment.
You should also think about where to draw the line. Is an absolute ban preventing employees from identifying themselves as being employed by your business reasonable? What about LinkedIn profiles? There is no one size fits all, but a middle ground might be to require employees who do identify you as their employer to maintain professional behaviour in their postings.
Your social media policy should be consistent with other policies, particularly your harassment/bullying policy and disciplinary policy.
Without a social media policy, employers will find it more difficult to dismiss or even to discipline staff for posting inappropriate comments. To start with you will need to find out how much damage or potential damage has been caused to your business reputation – something you may prefer not to do, as it runs the risk of highlighting to a client, something that they may not be even aware of. Even if you can show that your client might have read the blog etc, you should not take a disproportionate view of the damage that has, or could have been incurred.
2 Who owns the information/contact lists on our employees’ LinkedIn accounts?
The question of who owns contact lists and other information put on an individual’s LinkedIn profile is starting to cause particular concern for a number of businesses – particularly those who rely on close connections and developing good contacts.
The starting point is that if a contact list is developed and used for business purposes by the employee in the course of his employment, the employer is regarded as the maker of the list (unless the parties have agreed otherwise).
With regard to online profiles there is a distinction between ownership of the account and of the information contained within it. The employee will own his profile but what about information about clients, products or other business information? We do not have any decided cases on this point, but a number of cases are being brought both in the UK and abroad which hopefully will provide some clarity.
The best way to address potential problems and ownership of contact lists is to have a coherent policy which makes it clear that the business owns its confidential information, intellectual property and clients and business contacts. Well drafted restrictive covenants will also assist employers to protect this type of information.
3 Can we use information about candidates posted on social networking sites to help us make recruitment decisions?
Accessing a candidate’s social media profile is a legitimate recruitment tool. It can be a quick and cheap way to obtain insight into a candidate’s real character and their potential suitability for the job. Clearly employers must not use this information to reach decisions that are discriminatory. We recommend that you conduct social media investigations in a uniform way, by for example, searching the same sites for all of the applicants for a position. Information obtained from social networking sites could be screened by someone outside the recruitment process to ensure that any information relating to an applicant’s disabilities, sexual orientation or other protected characteristics are removed from the profile.
Vetting of job applicants via social media will involve processing personal data (when the employer either uses or records the information obtained), so you must ensure that your enquiries comply with the Data Protection Act. The ICO's guidance suggests:-
• Vetting should be used to confirm specific points rather than for general intelligence gathering;
• Information should only be sought from sources where it is likely that relevant information will be revealed;
• Employers must avoid placing reliance on potentially unreliable sources.
You may find that in obtaining social media profiles, you have more information about some candidates than others, particularly those without electronic footprints. There is nothing wrong with this – it is usual for employers to have varying degrees of knowledge about candidates. Careful interview questioning will enable all candidates to expand on their suitability for the role.
4 Are we responsible for discriminatory comments made by our staff in their own time using their own devices?
You could be. Anything done by an employee in the course of their employment is treated as having also been done by the employer regardless of whether the employee's acts were done with your knowledge or approval.
You will only be liable for your employees' discriminatory actions if these are done "in the course of employment", a term which is given a wide meaning. It will include conduct that takes place off the premises and out of normal working hours such as at social gatherings or parties organised or attended by the employer.
You should ensure that your employees understand that they should not post discriminatory comments about other members of staff, or customers on social networks – even on forums that they consider to be private as they have no control over whether their comments are forwarded or posted to other sites.
Staff who feel that they have been bullied by their colleagues in this way, will expect you to act to prevent further harassment. You should investigate their complaints and if substantiated, take appropriate action against the perpetrator.
It is worth remembering that there is a defence available to an employer if it can show that it took "all reasonable steps" to prevent the employee from doing the discriminatory act. To establish this you must:
• Have a policy in place to deal with social media issues,
• Provide training on the policy
• Deal with complaints promptly and consistently.
5 Can we monitor our employees’ company email accounts and internet usage?
This type of monitoring is subject to the principles of the Data Protection Act 1988. Guidance provided by the Information Commissioner recommends that employers must conduct an impact assessment before monitoring employees to ensure that there is a fair balance between an employee’s expectation of privacy and an employer’s right to protect its business.
Once you have done this, you must advise your employees of:
• The circumstances in which monitoring may take place.
• The nature of the monitoring.
• How this information will be used.
• The safeguards in place to prevent abuse.
Simply telling employees that their e-mails and internet usage may be monitored is unlikely to be sufficient.
You must also pro-actively take steps to ensure that your staff are aware of your policy. It is not enough to add the policy to your intranet or handbook and hope that your staff read it. Instead, ensure that the contents of the policy are dealt with in the induction process for new workers and consider setting up IT systems so workers must read the policy in full from time to time before they can access e-mail or the internet.
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