Social media covers such a wide variety of platforms and methods of communication that generalisation is difficult. But we believe it is possible to draw some conclusions from recent developments about the threats and opportunities currently facing HR departments.
The use of social media by employers touches a great many different areas of law and practice: data protection, human rights, copyright and defamation to name but a few. In this note we will focus on issues of particular interest to HR managers in the context of the employment relationship.
Recruitment: a mixed picture
Research commissioned by ACAS in 2013 suggests that just under half of employers were then using social media as a recruitment tool, though only a third of these also used it to undertake screening and background checks.
Although things are likely to have changed somewhat since then, it seems that social media is currently being used predominantly as a recruitment tool. Each platform has a separate demographic, so for example LinkedIn might be more useful for helping attract professional staff, while employers seeking to attract large number of relatively unskilled vacancies might use Twitter to advertise vacancies. However to ensure the widest possible pool of applicants it is best practice to use social media to complement more traditional methods of recruitment, rather than as a replacement for them.
Searching applicants’ social media accounts to help in the selection process is more problematic. For a start, such vetting is frowned on by the Employment Practices Code published by the Information Commissioner. It may also cause difficulties from an equalities perspective, not least because it has the potential to feed at best irrelevant and at worst unreliable information into the recruitment process.
Regulating the flow of social media content
There is no doubt that in the right hands the use of social media is a powerful tool for enhancing an employer’s brand and engaging with its customers. It can also be used to enhance the efficacy of internal communications with staff. Problems however are almost inevitable giving the propensity of social media to magnify careless mistakes and to blur the lines between work-related and private content.
Most businesses making extensive use of social media have therefore developed comprehensive policies which seek to define the responsibilities of employees operating social media accounts and to ensure the employer maintains control of their operation, even if some accounts are personal rather than corporate. However given the rapid pace of change and the informal nature of social media interaction it can be hard to strike a balance between applying firm rules and avoiding stifling micro-management.
The dangers of having inadequate control systems in place were vividly illustrated during collective redundancy talks at HMW two years ago when a group of employers temporarily took control of their employer’s twitter feed. Among other things, they claimed that the accounts had been set up by an unpaid intern two years previously.
There remain many answered questions, not least about what happens to the contacts on platforms such as LinkedIn when the employee moves on. Contractual steps can be taken to preserve the benefit of these for the employer, though it remains to be seen how effective these steps are, either legally or practically.
Much recent case law has focused on the negatives: essentially whether employees can be fairly dismissed for making comments on social media that show the employer in a bad light. The most recent example involved the use of a private twitter account by a manager at Game to post highly offensive, though personal, content. However the account could be readily linked to the employer by the identity of his followers. As a general rule, the courts have been prepared to accept that such remarks can be treated as if made publicly, unless the employee is particularly rigorous about their privacy settings or selective about their choice of friends.
That is not to say that there are not some limits. For instance, a social housing organisation was found to have acted in breach of contract by disciplining an employee about some moderately worded remarks about gay marriage which had been posted on his private Facebook page. The fact that they conflicted with the position taken by the employer on this issue was not regarded as justifying the action taken.
In any event disciplining staff is not always a complete answer to reputational damage. Employers will want to take steps to get the offending content taken down. Recent changes to the law of defamation which came into effect at the beginning of 2014 have made it easier for website operators to resist calls to take down potentially defamatory material, leaving the employer to resolve issues direct with the employee. Further consideration of the law of defamation is outside the scope of the note, other than to observe that in this area, as with many others involving social media, it is likely to be better to focus on prevention rather than attempting a cure that will almost always be partial.
An aid to investigation?
The permanent and searchable nature of much social media content can make it a powerful investigative tool in many contexts, and there have been occasions where this has been turned to an employer’s advantage in disciplinary proceedings. A relatively recent example is provided by the case of a customer sales representative who pursued a modelling career in her spare time. She was found to have been fairly dismissed when postings on her personal Facebook page showed that she had been working at a fashion show when signed off sick.
However employers should be cautious about making an active trawl of social media sites in the absence of specific concerns. Such activities are likely to infringe data protection principles and could also stray into the dangerous territory of covert surveillance, which to remain on the right side of the law needs to be managed carefully.
Views about social media tend to be polarised. In reality, like any other method of communication, it simply requires careful thought on the employer’s part to find a way of engaging with the various platforms which best suits an employer’s particular business needs. Employment disputes involving social media which reach the courts inevitably focus on the negatives, but those cases need to be placed in the context of widespread and largely trouble-free use of this relatively new technology.