Social media has become a huge part of our lives and its use in the workplace is no different. This development poses new challenges to employers who must protect themselves against the risk of inappropriate use of the internet and social network sites by employees. At its most serious, an employer may face a criminal conviction if an employee downloads child pornography and the employer knows about it and does nothing.
Employers must also take action to prevent certain activities occurring, e.g. cyberbullying, under the Safety Health and Welfare at Work Act 2005.
What do you do if you are an employer and an employee is misusing social media sites such as Facebook at work?
It is very important to have a strong written policy in place in relation to use of email/internet and social media and to follow proper procedures when investigating whether policy has been broken.
A case involving former employees of a bank highlighted this issue. In this case, employees were dismissed for their role in circulating offensive emails. The Employment Appeals Tribunal (EAT) found that the employees had, in fact, broken the company email policy but found that the dismissals were unfair for the following reasons:
- Breaches of the policy were widespread in the company.
- The employees were excluded from the investigation.
- The investigation was carried out without the knowledge of the employees.
- The employees had an exemplary record prior to the investigation.
- Dismissing them was seen as disproportionate to the disciplinary offences they committed.
In another case, an employee posted derogatory comments on Facebook about her employer. The EAT said that her dismissal had been fair. A key factor was that the employer was specifically named in the offending posts.
So, if you don’t have a policy in place what first steps should be taken?
- Put a policy in place immediately dealing with email, intranet, internet and social media use which sets out in detail the rules and enforcement procedures. It is not enough to simply state that inappropriate use is not permitted.
- If you are hiring new employees, this policy should form part of their contract of employment and they should sign it in addition to their contract of employment.
- For existing employees where there is no existing policy in place, you should give each employee an opportunity to delete or reorganise his/her emails, weblinks, etc. prior to the policy coming into operation. Ideally you should get each employee to sign the policy to show that they agree to its terms.
- Once the policy is in place, and if employees have not signed it, you should ensure that all employees and any third party having access to your email/internet facilities are aware of the policy. They should be constantly reminded that the policy exists. This may be done as part of the daily logging on or by having intermittent pop-ups.
From an employee’s perspective, social media sites are increasingly being used for pre-employment screening. Is this allowed? It can be validly argued that if individuals make information about themselves and their views available online, there is nothing to prevent third parties using such information. Potential employers should take particular care, however, to ensure that data protection and anti-discrimination laws are not broken.
Employers should seek legal advice if and when a situation arises within their organisation.
If you have any queries regarding the above, please contact Helen Coughlan on 045 431542.