In this article...

• Recruitment
• Misconduct
• Productivity
• Practical steps

Recruitment

A survey published earlier this year by recruitment consultancy, Badenoch & Clark, found that 62% of managers will check social networking sites before offering a candidate a position.

Managers may feel that this offers an insight into what a potential employee is “really” like, and the chance to check whether they have posted any derogatory comments about previous employers.

Whilst there is no specific legislation preventing this type of pre employment vetting, it may be unwise to encourage this practice. In general, best practice on recruitment dictates that applications are anonymised as much as possible, in order to avoid allegations of discrimination. Personal information, such as marital status, age and sexual orientation, may be freely available on sites such as Facebook. Accessing this information prior to offering employment may make allegations of discrimination more difficult to defend. It may well still be a useful source of information, but employers should be aware of the potential for challenge along these lines.

Misconduct

The way in which employees behave (or misbehave!) outside the workplace has not changed, but social networking sites now provide the opportunity for such behaviour to be broadcast more easily and widely than ever before. Social networking sites also allow employees to make contact with their colleagues more easily, inside and outside of work but outside of internal communication systems and controls.

Existing case law has established that employers may be liable for misconduct, such as bullying or discrimination, which takes place at work social events. The case of Majrowski v Guy's and St Thomas' NHS Trust has also confirmed that employers may be liable for harassment of employees, regardless of whether the harassment took place at work or at a work social event.

Whilst there is no reported case law on this issue in relation to social networking sites, it is likely that the same principles would apply. The highest risk would be where employers have bought into the social networking phenomenon by setting up company profiles: these sites could be said to be within their control but, in reality, will prove very difficult to monitor.

Case law has also confirmed that employees’ conduct outside of work may be a valid reason for disciplinary action, where that conduct impacts on the employee’s employment. This could apply to conduct which comes to light as a result of information posted on profile pages. Tribunals are likely to adopt a similar approach to such conduct as in Pay v Lancashire Probation Service. In this case, a police officer who worked with sexual offenders had posted images of himself engaging in extreme sexual activities. This was held to be inconsistent with the officer’s post and, therefore, his dismissal was fair.

Whilst employees’ activities outside of work can be a valid reason for disciplinary action, take care to ensure that information in relation to those activities has been obtained in line with the Data Protection Act and employees’ privacy rights.

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Productivity

With reference to its addictive nature, Facebook is sometimes jokingly referred to as “Crackbook”. Accordingly, employers may be concerned about employees wasting working hours on social networking sites. Should such sites be banned?

An outright ban on networking websites may cause resentment, but limiting their use to lunchtimes, and before or after office hours may be a more sensible option. It may also be possible to install software which time limits access. Overall, there is no practical reason why allowing access to social networking sites would jeopardise productivity any more than allowing, for example, occasional personal telephone calls or emails. The TUC’s briefing on this issue suggests taking a pragmatic, rather than a Draconian, approach.

Practical steps

		Consider the risks in using social networking sites to vet employees.
		Consider revisiting your current internet and communications policies to check that the wording can apply to social networking sites.
		Consider whether you need a specific policy on social networking sites, and what controls you might put in place.
		Ensure that employees are aware of your policies, and that unacceptable behaviour will not be tolerated, whether in the real or virtual world.