Is Social Networking - Working?

Social Networking sites such as Facebook, Twitter, MySpace and LinkedIn have a growing impact on the lives and lifestyle of huge numbers of people. They are increasingly relevant to employment both in terms of potential commercial opportunities for the employer but also to the activities of employees. In the UK it is estimated that employees spend an average of 2-3 hours per working week on such sites. The corresponding cost to employers in terms of loss of work time is argued to be as much as £14 billion a year. Such an enormous increase in activity has also been helped by the wide spread use of personal mobile handsets enabling remote access to the internet, including whilst at work, without the need to use the company's phone or computer system.

Employers are used to grappling with the issues of use and misuse of the internet and/or phones by employees for inappropriate and non-work activity. Whilst many of the same issues arise with social networking this new phenomenon brings with it a number of new issues that can impact directly on the employment relationship.

A whole industry is growing where consultants advise companies that the use of such sites, including by employees, can improve productivity and staff retention by helping to increase the connection to other people within the same company or within a wider industry. It is very common that employers allow reasonable access by employees to the internet for personal use during work hours and particularly if such hours are long and outside of the usual working day. However a policy must be in place to remind employees that systems are used to monitor excessive and/or inappropriate use as often employment can be a subject for comment on a users "wall". Whether for the purposes of interest, humour or derision, such comments may be shared with other employees and to the much larger number of contacts or "friends". Comments about their employer can sometimes be negative and can become widely circulated often much further than the employee had ever intended. Notorious and reported incidents include the Argos worker who was sacked for very critical comments about his employer; the bank employee who told his employers that he had to attend a family emergency but whose Facebook page revealed that at the relevant time he had in fact been attending an Halloween party in drag (as a tagged photo revealed) and references during the ongoing industrial dispute at BA where social networking sites were allegedly used by all parties to gather information on possible tactics and employees sympathies and activities during the dispute.

It's not just employee's use of this media that is leading to increased concern. It is more and more common that employers in the UK use third party agencies to verify and obtain references and other information as part of the recruitment process. Whilst the primary purpose may be to confirm information provided by an applicant it is sometimes regarded as appropriate to report on a candidate's profile on their social network site. This raises another aspect of the debate of whether and how far information posted by the user and their "friends" can or should be protected by privacy laws. This has a direct impact on whether or not it is right that such information can be relied on and whether it should be possible for action to be taken by employers against employees during employment or even before (eg the withdrawal of a job offer?). This has led to the German government considering introducing a law to limit the degree to which employers may rely on such information. The essential aim would be to stop what is intended to be private information from becoming public and so generally available. One problem with such a principle is how any such law could be enforceable bearing in mind the scale of social networking around the world.

The use of social networking sites raises many of the same issues that employers already have to consider on the use of phones and/or internet by employees during working hours. Some companies have found clear procedures governing such use and monitoring in the workplace can be an effective management tool. The rising spectre of social networking can bring further and potentially serious new issues. Unforeseen problems can include reputational damage to an employer, damaging disclosures of confidential information and legal claims against an employer who may be vicariously liable for actions/comments by an employee. Employers need to consider how best to limit and deal with such issues before they find themselves the subject of potentially serious problems and legal claims that could have been prevented or mitigated by the implementation of appropriate policies and systems in the workplace.

For further information, please contact:
Mark Dent, Partner and Head of Employment Law
Direct Line: 0207 299 9263
Email: mdent@pcblawyers.com