Social media
Technology is now an essential part of everyday working and personal life. Recruiters use social media to access a wider list of client networks, candidates and to generate leads. However, it also presents many challenges and risks. Therefore it is essential to understand how technology affects our rights and obligations as individuals (whether as private individuals or as employees, workers or work-seekers) and as recruiters and employers.
Businesses should have an effective social media policy in place to mitigate these risks. Recruitment businesses must also be aware of how to conduct themselves when they discover an employee’s presence on a social media site to avoid discrimination and employment law claims. This section looks at the relevant issues for REC members when acting both as recruiters and as employers:
- Searching social media profiles during the recruitment process
- Dismissing employees for inappropriate use of social media
- Monitoring employee emails and social media accounts
- Use of LinkedIn contacts when an employee leaves the business
- Charging introduction fees when clients claim to have contacted candidates via social media
Can I consider the applicant's or candidate's social media activity when making a recruitment decision?
Currently there is no specific legislation that prohibits recruiters or prospective employers from looking at a candidate’s social media activity to make a recruitment decision. However, doing so may give rise to issues of privacy, data protection and allegations of discrimination from unsuccessful applicants. A candidate may provide information on their social media profile about their age, sex, marital status, race, religion or belief, sexual orientation, whether they have had (or are considering) a gender reassignment, are pregnant, or are disabled. All of these are protected characteristics under the Equality Act 2010 which means that a recruiter or employer should not discriminate against the candidate on the basis of any of those characteristics.
The digitally excluded
Younger applicants tend to have more active social media profiles than older candidates. Unless a social media profile or related skills are specifically required for a particular role, recruiters and prospective employers should not refuse to consider an application simply because an individual does not have a social media profile. As mentioned above, age is a protected characteristic under the Equality Act 2010, and refusing to employ someone or to provide recruitment services because of age could give rise to unlawful age discrimination.
If an unsuccessful candidate believes that they have been discriminated against by a recruiter or prospective employer they can issue a claim in the employment tribunal. They will need to establish that the recruiter or prospective employer had viewed their profile and that their application was rejected because of one of the nine protected characteristics or in fact because they did not have a social media profile to check. The initial burden of proof is with the claimant to prove on a balance of probabilities that there has been discrimination.The burden then shifts to the respondent to prove that they in no way discriminated the claimant.
In addition to a candidate’s own social media activity, recruiters and prospective employers might conduct internet searches on an individual to see what else they might find out about the individual. However, they need to take care about refusing to engage an individual because of a story they may see on the internet without first checking that the story/information is true. They should give candidates the opportunity to explain any information they find since information posted by other people could be inaccurate, false, scurrilous or even about a different individual with the same name. Alternatively do not do any of these searches until later in the recruitment process such as when ready to offer a role.
Recruiters and employers therefore have the following options when considering how and when to use social media as a means of vetting candidates. They can:
- Refrain from using social media in the recruitment process altogether. This will eliminate the risks mentioned above.
- Check social media profiles but only having, informed prospective employees and candidates that such vetting will occur and giving them the opportunity to clean up their profiles if need be. Having then checked the profile(s) they should not make a recruitment decision based on the information regarding any of the nine protected characteristics.
- Refrain from doing any other internet checks until late in the recruitment process but follow up any findings appropriately.
When is it appropriate to take action against an employee for unsatisfactory behaviour on a social media platform?
There have been many recent cases where employers have dismissed employees for social media related conduct. This is often the case where an employee has made offensive comments about their workplace or their colleagues on a social networking site that could bring the company into disrepute, or where inappropriate behaviour of the employee has been exposed on such a site. As shown in the following cases employers can fairly dismiss employees for offensive comments or inappropriate behaviour made on social media provided (1) employees understand what is and is not acceptable in terms of behaviour and (2) the employer follows the appropriate disciplinary procedure. It is therefore important to have in place a policy to highlight to employees what constitutes unacceptable use of social media and what does not. A sensible way of recording this is to have a comprehensive policy in this area.
- REC model policy on mail, telephone, computer facilities and social media
The first Twitter-related social media case to be heard in the Employment Appeal Tribunal (EAT), in November 2014, involved the high street store Game Retail Limited and their employee, Mr Laws. He was a risk and loss prevention investigator, and was responsible for around one third of the stores across the country. Mr Laws created a personal Twitter account on the recommendation of a store manager, which was followed by around 65 stores. After an allegation by another Game employee that Laws was writing derogatory comments on Twitter, an internal investigation found that Laws posted 28 offensive tweets. As a result, he was dismissed for gross misconduct. He appealed against his dismissal but his dismissal was upheld. Laws subsequently claimed against Game for unfair dismissal. An Employment Tribunal (ET) found that Laws had been unfairly dismissed on the basis that the decision to dismiss was not within the range of reasonable responses. The ET took into account the fact that Laws’ comments were on a personal Twitter account which was not linked to Game, the comments were made on his personal mobile phone, outside of working hours and additionally, Game’s disciplinary procedure was not clear on the issue of whether inappropriate social media use in private time could be treated as gross misconduct. Game appealed the ET decision. The EAT disagreed with the ET and found that the ET had failed to appreciate the public nature of Twitter. Mr Laws’ comments could not be ‘private’ as they were visible by all of the stores that followed his account. Further, Mr Laws made no attempt to ensure his tweets only went out to a private audience. He didn’t set up two accounts, one for professional use and one for personal use, nor had he adjusted his privacy settings to restrict his followers. Mr Laws was knowingly tweeting in the context of having approximately 65 of Game’s stores following his feed – and on the recommendation of a store manager. Mr Laws’ use of Twitter could therefore not be considered private usage and the EAT overturned the ET decision, finding that that Mr Laws was not unfairly dismissed.
British Waterways Board v Smith (2015)
The EAT held that it was fair to dismiss an employee who had made derogatory comments about his employer on Facebook two years before his dismissal, even though his employer had been aware of the misconduct during the two-year period.
Background - the law on dismissals
Employees who have more than two years' service are entitled not to be unfairly dismissed. For a dismissal to be 'fair', the employer must prove that the reason for such dismissal is a 'potentially fair reason' under the Employment Rights Act 1996 and follow a fair procedure.
Where the reason is conduct related, the employer must prove that:
- at the time of dismissal, he/she believed the employee was guilty of misconduct;
- he/she had reasonable grounds for the dismissal; and
- a fair investigation was carried out.
The employer's decision to dismiss must fall within the 'range of reasonable responses' that the employer had in the circumstances. In assessing the employer's decision, a tribunal must not substitute its own view for the employer's view.
British Waterways Board (BWB) v Smith - Case Facts
Mr Smith worked for the BWB as a manual worker when he was summarily dismissed for gross misconduct. Mr Smith worked as part of a larger team who worked on a rota pattern, working on 'standby' for one week in every five weeks. During this standby period, workers were expressly prohibited from consuming alcohol.
BWB had a policy in place which stated that 'any action on the internet which might embarrass or discredit BWB' could constitute a serious breach, and result in dismissal. BWB confirmed in the policy that such action could also include defamation by posting comments on chat rooms or bulletin boards.
Mr Smith raised numerous grievances during his employment. In May 2013 his grievances were due to be addressed through mediation. It was at this point that his manager produced evidence of derogatory comments made by Mr Smith on his Facebook profile. These comments were raised to prove that Mr Smith's grievance's were not wholly one sided and they were supplied to the internal HR team who organised the mediation. It was revealed that the comments were posted in 2011. The comments referred to Mr Smith claiming he had been drinking whilst on a standby shift. Mr Smith also posted comments about the BWB HR team and his own supervisors using derogatory terms.
On arrival at the mediation meeting, Mr Smith was suspended from work pending an investigation into the Facebook comments discovered by the HR team. At a later disciplinary hearing in June 2013, BWB summarily dismissed Mr Smith for gross misconduct. Their reasons were as follows:
- Mr Smith had posted derogatory comments about BWB as an employer; and
- Mr Smith claimed to be drinking alcohol during a standby shift. This brought his capabilities into question and also left BWB open to public criticism since the comments were posted publicly.
Mr Smith appealed the dismissal internally, however this was unsuccessful and so he brought a claim for unfair dismissal.
The Employment Tribunal (ET) found that Mr Smith was unfairly dismissed. despite BWB following an unfair procedure. They held that the decision to dismiss was not within a range of reasonable responses that a reasonable employer might have adopted. The ET concluded that BWB ought to have considered Mr Smith's mitigating factors, namely that the claims on Facebook were untrue and that Mr Smith had an otherwise unblemished conduct history.
Employment Appeal Tribunal Decision (EAT)
The EAT held that the dismissal was fair.
The EAT stated that the ET had substituted its own views for that of the employer when it held that BWB didn't give weight to the mitigating factors in question. This was simply a matter for the employer to decide, and BWB's decision to dismiss was within a range of reasonable responses open to an employer given the circumstances.
This case is an important reminder to employers about why it is imperative to have an effective and up-to-date social media policy in place and to employees of the importance of exercising caution in their online presence.
I don't have a social media usage policy in place just yet, what should I be doing now?
Businesses should have appropriate policies in place which clearly set out what is and is not acceptable in terms of employee behaviour generally and in social media particularly. The policy should set out the consequences of violating the policy and should cross-refer to the disciplinary policy as well as data protection and information security policies (if these are separate). Whilst keeping issues such as individual’s right to privacy in mind, include a statement on the use of the internet in relation to employee activity outside of work.
See the REC model policies on:
- Mail, telephone, computer facilities and social media
- Disciplinary, dismissal and grievance procedure
- Data protection, and
- Data procedure
Ideally, the policy should be drafted after a consultation with workers (either through representative or directly if no representatives are present/available). This ensures that the policy is fair and will help to define what is reasonable within each organisation and its context. Once finalised, ensure that workers know that the policy exists (you may even require them to acknowledge they have read it).
Keep up to date with developments in employment law relating to social media by regularly checking our Legal News. Case law in this area is limited and many principles and issues relating to social media are yet to be tested. Additionally, organisations need to regularly review the policy on social media usage since this is a fast moving and developing area.
Can I monitor employee emails and social media accounts?
Employees who use the internet (including social media sites and blogs) can potentially damage the employer’s reputation, lead to loss of business and also liabilities such as harassment, defamation, communication of confidential information. Businesses can, however, monitor how employees are using the internet to limit such risks.
There are broadly two forms of monitoring in relation to an employee’s online behaviour: email content and internet use. A business can use sophisticated programs to search the content of emails sent by the employee, by checking for key specified words. Even if the email is deleted from the user’s email account, once sent, the email is retained on the computer’s hard disk, long after the employee has left employment. Internet use can be monitored using “cookies” or “web prints”. The employer can even block certain web addresses if necessary.
Best practice for employers when monitoring an employee’s online presence:
- Be clear and open with your employees. We recommend being up front with your staff about what you monitor and why. A simple way of doing this is having a statement in your company handbook or internet usage policy that clearly explains the extent to which their internet use is monitored. If employees know that their behaviour is being monitored, this could serve as a deterrent for unwanted online activity.
- Check usage reports regularly. If your company generates usage reports then make sure you take the time to read them. This will help you to identify problems early on and remedy them. For example, if you find that a number of employees are reading a particular website regularly, which is not for work purposes, and is causing productivity problems, you could simply email your staff to reiterate that such websites are not an appropriate use of company time. If the problem persists, you can simply block the website.
The Employment Practice Code ('EPC'), by the Information Commissioner’s Office, is intended to help employers comply with the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000, and more generally to adopt good practice. The EPC further recommends that employers should set out:
- The circumstances in which monitoring might take place.
- The nature of the monitoring.
- How information obtained through monitoring will be used.
- The safeguards in place for the workers subject to the monitoring.
The EPC also states that simply telling employees that their email and internet usage is being monitored is unlikely to be sufficient. Employees must clearly understand:
- When information about them is likely to be obtained.
- Why the information is being obtained.
- How the information is being used.
- Who, if anyone, the information will be disclosed to.
The EPC further makes the following good practice recommendations:
- If you have to check workers’ email accounts in their absence, make this clear.
- Ensure email monitoring is limited to the recipient address or email heading, unless it is essential for a valid reason to also examine content.
- Encourage employees to label personal emails as such and to tell those who email them to do the same.
- A limited number of staff should have access to information obtained through monitoring and those members of staff should have received appropriate training.
As an employer, be sure to have a comprehensive policy in place that informs your staff of the reasons for, and the extent of, your email/internet monitoring. For more information, please see our email, telephone, computer facilities and social media policy (Model Policy 4).
Recent case law
In January 2016, the European Court of Human Rights ruled in the case of Barbulescu v Romania that employers can monitor employees' electronic communications in certain circumstances. The case involved an employee who used a Yahoo Messenger account, which was opened at the request of his employer. The employer had a clear policy in place prohibiting all personal use of company facilities, including computers and internet use. Over a nine-day period, the employer monitored the use of the account, and presented the employee with a 45 page transcript of messages sent by the employee to his wife and brother. The employee’s employment was terminated, but he argued that the employer had breached his human rights.
The court ruled that, because there was a clear policy in place, the employer was entitled to monitor the use of work computers to ensure that its policies were being complied with. Without such a policy, the employee could have had a reasonable expectation of privacy. The court placed particular importance on the following factors:
- The employer had a clear policy in place
- The monitoring was limited in scope and proportionate
- When monitoring the messages, the employer believed that the account contained only work-related messages
The case does not give employers the unrestricted right to ‘spy’ on their employees, although some press reports interpreted it that way.
As well as having a clear policy in place, it is important that employers should follow the Employment Practice Code from the Information Commissioner’s Office, particularly the section “Monitoring at work”.
In addition, the case concerned an employee using a computer at work. If an employer provides the employee with a laptop or smartphone to use at home or when on the move, the employee may have a greater expectation of privacy, making it harder to justify monitoring. The same could apply for employers who operate a ‘Bring Your Own Device’ policy, where employees might use a personal smartphone to access the employer’s systems.
See issue 73 of the Legal bulletin for more information.
An employee has left our organisation, I want to make sure (s)he deletes all LinkedIn business contacts with clients and candidates that were made during the course of his/her employment. Can I do this?
It is common for recruitment businesses to actively encourage internal employees to use social networks such as LinkedIn. The employee will have access to an abundance of candidate and client information on these platforms as part of their recruitment processes. However, when an employee moves to another company, and so updates their details on a social media page, their contacts will also be notified of this change. Since the recruitment industry is heavily reliant on client relationships, this could be damaging for the former employer’s business. LinkedIn’s own Terms and Conditions state that ownership of a LinkedIn user account is with the individual. However, courts in the England and Wales have disregarded such terms where confidential information is involved. We therefore recommend that you have terms in place to govern the ownership of any social media profiles that you require your employees to use during employment with you.
One case that illustrates this issue is Hays Specialist Recruitment (Holdings) Ltd and Another v Ions and Another [2008]. This case involved a senior recruitment consultant, who left to set up his own business. Hays Specialist Recruitment (Hays) suspected the ex-employee of breaching the restrictive covenants in his employment contract by taking details of clients and contacts stored on his LinkedIn account. The ex-employee argued that the transfer of information was carried out with the consent of Hays since they encouraged him to join LinkedIn, and that once the business contact had accepted the invitation the information ceased to be confidential. Hays sought disclosure of evidence to support its claim. Despite the court finding that some aspects of the request were too broad, and could be deemed a 'fishing expedition', it did determine that Hays had reasonable grounds for considering that it might have a claim against the ex-employee and granted the disclosure of all emails and other communications uploaded to LinkedIn from the company's computer and all documents showing how contacts had been generated while the ex-employee was employed. This case illustrates that the court recognises that LinkedIn can be used by employees seeking to retain their employer’s confidential information for their own use.
Another leading case is Whitmar Publications Ltd v Gamage and Others. Four months before resigning from Whitmar, three employees set up a business in competition with their employer. Following the resignations Whitmar discovered the existence of the competing business and brought proceedings seeking an interim injunction (amongst other things) to restrain the use of confidential information. The three ex-employees were accused of attempting to poach one member of staff and removing and copying confidential information. One ex-employee, Ms Wright, managed four LinkedIn groups on behalf of Whitmar. She claimed that they were for personal use and ‘just a hobby’. Despite this, three days after resigning from Whitmar, these groups were used to source email addresses for the competing business’s press release inviting the contacts to an event. Ms Wright refused to provide Whitmar with login details to access details of the groups. So what was the decision? The court considered the steps taken by the ex-employees were active competition rather than merely preparatory actions. Consequently, the employees were in breach of the implied duties of fidelity and good faith (in the absence of any express post termination restrictions, confidentiality clauses or social media policies). The court granted Whitmar relief by preventing the ex-employees from exploiting Whitmar’s confidential information in the LinkedIn groups. In doing so, the court ordered the ex-employees to give Whitmar exclusive access, management and control of the LinkedIn groups in question. Additionally, they were also ordered not to access (or even do anything that would restrict or prevent Whitmar from accessing) the LinkedIn groups.
If your employees are required to use social media to complete their normal duties then it is imperative to have a clear social media policy in place. There are also some further steps that can be taken to assert some control of an employee’s social networking account:
- Require employees to immediately transfer contact information to your company’s internal contact database. This ensures that you retain that same information in the event of an employee leaving.
- Review existing restrictive covenants to see if they apply to post-termination contact with connections formed during employment. A difficulty here is that when you change your details of your employer on LinkedIn, that change is automatically notified to your connections. Some have argued that this could amount to solicitation (and therefore a breach of a restrictive covenant with that employee), however the position on this is not yet clear. One way around this would be to include a restrictive covenant to prevent employees from updating their employer details for a specified amount of time after their employment with you ends. It would also be best practice to have an agreement with your employees in writing to remove any connections on LinkedIn made during employment before updating the employer details.
- Request that employees change their default settings on their profiles to hide the list of connections. This may prevent other users from benefiting from your employee’s connections and could also help with the argument that those connections are confidential.
It is likely that the court will find the profile remains the property of the employee in question. Whether the information (i.e. contacts or groups) stored on that profile belongs to the employee or employer will depend on how and when that information was collated. Until further cases are heard by the EAT, the position appears to be:
- If the contacts are in the name of the employee’s personal account (i.e. (s)he is not maintaining a LinkedIn group on behalf of your business) then a claim for ownership is likely to be found in the employee’s favour.
- If the contacts amount to private information gained solely during the employee’s employment with the employer, such as emails and direct dial telephone numbers, this could strengthen the employer’s claim to ownership of such information.
- If your employee has collected the contacts from uploaded email address at work or the employer has in some other way provided your employee with business contacts, a claim for ownership is likely to be in the employer’s favour.
- It is important to include terms in your contracts of employment with internal employees to define what happens to social media accounts in the event of an employee leaving the company. For examples of such terms, see our terms and conditions of employment for recruitment consultants and other internal employees, not including employed temporary workers (Model Contract 30).
We introduced a permanent candidate to the client. We have now discovered that the client has contacted them directly using social media. Are we still entitled to an introduction fee?
For an introduction fee to be payable, the employment agency must show that there is a contract between themselves and the client, i.e. the agency must send terms of business to the client as soon as the client approaches with instructions.
You must check the terms of business you have used with the client. If you’re using the REC’s model terms of business (Terms of business for the introduction of permanent or fixed term contract staff - Model Contract 1), we define ‘introduction fee’ as the fee payable by the Client to the Agency for an Introduction resulting in Engagement, and ‘introduction’ is defined as:
(i) the passing to the client of a curriculum vitæ or information which identifies the Candidate or (ii) the Client’s interview of a Candidate (in person, by telephone or by any other means), following the Client’s instruction to the Agency to search for a Candidate; and, in either case, which leads to an Engagement of the Candidate; and “Introduces” and “Introduced” shall be construed accordingly;
This clause clearly states that an introduction fee is payable if the candidate that you have introduced is supplied by the client. The definition of ‘introduction’ here leaves little room for interpretation as to what is an agreed introduction.
In the absence of such a clause in your terms or even an acknowledgment of acceptance of the terms, the question of whether you as the employment agency were the effective cause of the introduction of the candidate is likely to arise. For this to be a requirement, the Court would need to imply such a term into the contract. However, Courts cannot improve on existing terms within a contract but rather they must interpret clauses fairly and reasonably. The Court will identify what a ‘reasonable person’, who had all the background knowledge, would reasonably understood the relevant terms within the contract to mean. Therefore, a Court would not imply a term regarding an ‘introduction fee’ unless a reasonable person would consider the contract to have such term. It must be noted however, that the REC does not advise trying to imply such a clause, as it would be difficult for a court to calculate fees for each individual case.
In summary, we advise agencies to send terms as early as possible (not after you have already sent CVs or when invoicing the client). Make sure that if the terms are varied then this is reflected into the contract. Actively seek to obtain a signed copy of the terms from the client, or at the very least, an acknowledgement of the terms.
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.