The extent of social media is such that employers now cannot ignore its impact. The most commonly used and most familiar social networking sites include Facebook, Twitter, and LinkedIn. In Germany, Bing and Studi VZ also rank high in the top 20 social networking sites. The explosion of these new means of communication has thrown up many issues for the employer, as the distinction between an employee’s work and personal life becomes increasingly blurred. This presents both threats and risks for businesses.
Some of the risks associated with the use of social media are as follows:
- Bullying and harassment of other employees.
- Exposure to potential claims for defamation.
- Disclosure of confidential employer information.
- Challenges to employers use of social media to “check up” on employees
Social media however isn’t all bad news. Many positives are to be gained through the appropriate use of these tools to develop professional contacts and business opportunities. The challenge for businesses is balancing the positives with the inherent risks that social media also brings.
For employers both in Ireland and Germany, the vast majority of situations where social media will come to their attention are where disciplinary issues arise through social media misuse by employees. The main issues which arise concern bullying/unfair treatment of other employees and posts/tweets that allegedly bring the employer into disrepute or damage its reputation. In relation to the latter, employers are more likely to be proactive and instigate disciplinary proceedings where there is any risk of reputational damage.
In Kiernan v A Wear the Employment Appeals Tribunal (EAT) had to decide whether the dismissal of an employee for posting disrespectful comments about her manager on the social networking site Bebo was proportionate. One aspect of the employee’s arguments was that her posting was private, being a message to her friend. In response the employer said that the site was linked to the employee’s website. When the employer became aware of the postings, they initiated disciplinary proceedings. A disciplinary meeting was held in accordance with the usual procedures and the employee was subsequently dismissed for gross misconduct. The employee initiated unfair dismissal proceedings. The EAT held that whilst the company’s disciplinary procedures were fair, the sanction imposed was not. The misconduct “deserved strong censure” but was not gross misconduct. The EAT directed that €4,000 be paid to the claimant. This case clearly illustrates that notwithstanding having a fair and objective disciplinary procedure in place, an employer must also ensure that the sanction applied is proportionate to the offence.
Contrast this with the more recent decision of O’Mahony v PJF Insurance Limited. In this case the EAT found that the posting of derogatory comments by the employee about her employer amounted to a breach of trust justifying her dismissal.
There are also several very recent cases in Germany which endorse the employer’s right to take disciplinary action where disparaging comments are made by the employer about the employee or where the employee discloses confidential business information. The question as to whether an employee may be dismissed for criticising or offending his employer on a social network site has not yet been the subject of a decision of the Federal German Labour Court (Bundesarbeitsgericht) but the question has been debated frequently by legal scholars and other experts in the media.
One of the arguments raised by the employee in the Kiernan case above was that her posting was private, being a message to a friend. This raises the issue of a person’s right to privacy. This assertion is one which is pleaded in the majority of social media cases. The European Convention on Human Rights, which has been implemented in Ireland by European Convention on Human Rights Act 2003, appears to suggest that the default position is that an employee is entitled to privacy. The Courts and Tribunals have made it clear that whatever privacy rights exist, they are not absolute and are subject to the duties of employees to their employers even when social media activity occurs outside work and on their own IT systems.
Germany has some of the most stringent privacy laws in Europe. Some attribute this to its history and ultimate rejection of intrusive political regimes which permitted surveillance on a wide scale using methods that severely infringed on citizens privacy. In 2010 Google’s Street View project prompted a high level of debate in Germany and 244,000 people opted out of Google’s Street View service. While other countries allow users photographed by Street View cars to have their faces blurred, Google Germany allowed people to have their homes removed before the service launched. Google has since chosen not to expand its Street View service in Germany beyond the cities already captured.
Germany has a data protection commissioner for each state rather than a centralised agency as in Ireland and other European countries. Different treatment of the same employer in different locations in Germany is therefore possible. By way of example, in 2011 the data protection commissioner for Schleswig Holstein made it unlawful for organisations based in the state to have Facebook fan pages and to use the “Like” application. The reasoning behind this move was fears that data transferred back to the US allowed the user to be tracked for a period of two years.
Social media and recruitment
Another aspect of social media which is slowly creeping into the employment sphere is the fact that it can be utilised as a tool for recruiters and job seekers alike. It is also playing an increasingly important role in how jobs are advertised and candidates assessed. There is a huge amount of information available from social media sites (such as LinkedIn or Facebook) which may be of great interest to recruiting employers and recruitment agencies. Recruiting employers need to be in a position to convincingly state that they did not discriminate on the basis of any of the prohibited grounds in the Employment Equality Acts, 1998 - 2011 when making a decision, if they have looked at information relating to a candidate’s nationality, age or family status online.
Employers in Germany also use information from social media sites to vet job applicants. However, a bill was approved on 25 August 2010 by Germany’s cabinet which would restrict employers’ use of social media in the recruitment process. Under the current version of the bill, which has yet to be passed by the German parliament, employers would be permitted only to access social media content that is necessary for the processing of the employment relationship or job applicants have made publicly available. Social media content limited to friends only would be “off limits”.
Tips for employers to meet the challenges posed by social media
Employers should consider taking the following steps:
- The implementation of a sound social media policy is highly advisable. Most employers already have comprehensive internet and email policies in place. Employers would be well advised to update these policies to include references to social media use.
- The provision of training guidelines. This includes induction for new employees and refresher coursesfor all existing employees. Communication of the content of the policy is key. It shouldn’t just be a “static” document.
- Contracts of employment should, where possible, incorporate social media into relevant clauses such as restrictive covenants and confidentiality clauses.
- HR teams should consider and adopt a policy on candidate checks using social media.
In relation to the contents of a social media policy, this ultimately depends on the employer and the nature of its business. Some will want to ban all social media at work and discourage it as much as it can outside work. Others will endorse its use more positively. Ultimately, most employers will aim to strike a balance between promoting the positive aspects of social networking, i.e. networking and business development opportunities, with an awareness of the risks and dangers posed.