Peer Matters

What risks do you run as an employee, and what restrictions can you impose as an employer where Facebook, MySpace, Bebo et al are in use – and does home use pose any risks for workers or their employers?

Policies
A safety conscious employer may just impose a blanket ban on social networking in the hope that this solves all risk issues, but this is a blinkered approach for any IT savvy company and does not sit easily with the benefits which might be missed when allowing employees to use the internet for business purposes, such as client contact and sales enquiries.

Assuming therefore that a company’s IT system can by consent be used for this purpose at work, the starting point for an employer is a well drafted and fair use policy to which all parties can refer.  IBM has published guidelines for their employees, and these make a good reference point.    In any case, policy restrictions on the time spent on personal use and avoiding inappropriate sites and material such as pornography, obscenity and violence are essential for any employer.

Employer liability for employee actions
Where are the limits? Inappropriate use will encompass breach of discrimination legislation (including bullying and harassment) since not only can a worker be disciplined and dismissed by his employer (and indeed sued by the victim) but the employer can be vicariously liable for an employee’s blog or twitter, leading to liability to a third party affected – actions which may hasten the departure of the author!

This is a developing area as the courts are increasingly seeking to ensure proper supervision of employees’ actions is performed, so an employer could be liable, for example, where material is posted on another person’s Facebook profile about that person or a third party, especially if done during the course of employment.

Careless Words
Careless words may also be defamatory of the employer or, possibly worse, third parties. A few years ago a major company found itself liable for an email written by an employee with a grudge, unfairly denigrating a third party company.  This was found to be a trade libel and caused losses running into several hundred thousand pounds.

There are of course “grey areas” which the law has not yet grappled with fully.  Picture the situation where an individual’s personal and business networks might converge in one place, such as a business group on LinkedIn.  So for an employer it may be prudent to think about ways to separate private and business networking in the workplace.

Home Use and work overlap
What about home use? Can an employee argue that in his own time he cannot be restricted in terms of blogs, and other social media activity?  In broad terms the higher up the organisation, and where a professional has defined duties including client relationships, the more careful you should be!  In ‘Pay v Lancashire Probation Service’ a probation officer was fairly dismissed after discovery that he had been involved in extreme sexual activity in his spare time with footage posted on the internet.  In another recent case a senior police officer posted details of his own gay activities on Facebook and was warned internally, which in turn lead to his promotion being blocked.

Clearly an employee who posts derogatory material about his employer may seek to argue it is justified and true but surely there are better targets, as in a recession this is akin to cutting your own throat. And the blogs and comments written now may come back to haunt employees looking for alternative employment next year or in ten years time, as many employers will cross check the internet to ensure they are not just relying on a CV.

Surveillance
Provided that employees know, surveillance may be undertaken in certain circumstances.  Provided appropriate tests and safeguards are met, email and internet surveillance is perfectly legal in the UK and indeed in many other countries, as is video surveillance of course.

Conclusion
In summary, do not assume you can write what you like in social networking sites, even in your own time, as Big Brother may be watching.  And if you are an employer, consider making it clear to your staff that clocking off does not mean your employees have carte blanche to post what they like at home.

About Andrew Fishleigh