Many employers are recognising the power of social networking for a whole range of purposes: whether to generate new business, increase their profile or even to assess potential staff.
In this article, we consider some of the employment law issues arising, which will be covered in more detail in our Social Networking seminar. As well as taking advantage of the opportunities provided by social networking, employers need to be aware of the potential adverse effects.
Before employment starts: The use of social networking sites to vet individuals as part of the recruitment process is increasing. Recent statistics suggest 45% of recruiters search the internet for candidates’ personal profiles. Checking a candidate via their social networking sites can yield a very different picture from the one painted by a CV!
However, the inherent subjectivity and irreverent nature of such sites can create problems. Quite apart from the questionable relevance of such sites to the working environment, networking sites often contain details of the individual’s race, age, sexual preference, religion, marital status etc. Employers using such sites are susceptible to challenge from unsuccessful candidates who may argue that such characteristics have unlawfully informed the selection process.
For the same reasons that employers should not ask about childcare responsibility, religion etc at interview, it is dangerous to make inquiries on social networking sites if the same sort of information would be uncovered. Employers should ensure that the entire recruitment process is carried out in line with the organisation’s Recruitment Policy in addition to its Equal Opportunities Policy.
During employment: Most employees have some degree of access to the internet during working hours. Employers need to ensure that internet use is appropriate, lawful, does not interfere with the employee doing their job, and does not give rise to employment related claims by way of unlawful “cyber-bullying” or harassment of colleagues.
Employers should carefully consider their policy with regard to use and policing of the internet at work. An Email and Internet Policy should be created that clearly sets out the rules:
- What use of the internet is permitted?
- At what times?
- Can social networking sites be accessed?
- Is commenting about the employer on such sites permitted?
- What sort of material must not be accessed or forwarded?
- Is there a policy regarding use of such sites for business development purposes, and who is in charge?
Staff should be advised of the policy, its content and trained in its application, with the policy being applied and enforced consistently and firmly. The consequences of failure to follow the policy should be set out (with appropriate reference to the organisation’s Disciplinary Policy). The policy should consider not only employees’ use of the employer’s systems during the working day, but the thorny issue of comments made about the employer on networking sites outwith the workplace. The effect of adverse comments on social networking sites and the impact upon reputation should not be underestimated.
After employment ends: Finally, employers should also bear in mind the potential claims that can arise from former staff. Comments made by the employer or by current staff about former staff could potentially be relied upon to support discrimination claims arising after employment has ended.
Equally, employers may need to be vigilant about abusive blogs or messages posted by ex-employees on social networking sites, and consider what action they may be prepared to take to stop reputational damage being caused.
Summary: Social networking sites have the potential to rapidly grow a business and increase its profile, when used carefully and sensibly. At the same time, care needs to be taken to limit the adverse effect such sites can have with regard to claims, as well as lost time. With a recent survey finding that employee internet misuse costs UK businesses £1.38 billion in lost productivity, can you afford to ignore it?
(Information posted in February 2010 and may not have been updated at time of reading).