Social media and your staff

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ocial media reveals much more about a potential applicant in terms of their personal life and opinions than a CV or a job application form.

Author: Polly Davies
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Social media is playing an increasingly large part in our working lives from the recruitment stage to dismissal and both employers and employees need to consider the extent to which they wish to involve it and monitor it in order to maintain standards of professionalism whilst accepting it as part of modern life.  

Social media reveals much more about a potential applicant in terms of their personal life and opinions than a CV or a job application form, and employers are increasingly using social media as a recruitment platform.   Not only does this require potential recruits to reveal their social media if they want the job but it opens them up to potential judgements by the employer based upon what they see on social media.  

If an unsuccessful candidate can demonstrate an interview wasn’t potentially given, due to a judgement gleaned from their social media profile on the basis of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation, it may be that an employer could face an employment tribunal.  

Some employers will only want to reach candidates through social media because of the nature of the employment, but it is important to consider whether it’s fair to look at the social media of one applicant because they have it, but not another applicant who does not use it.  

There have been numerous cases of dismissal from employment due to inappropriate use of social media, appeals have been won and lost, each case involving its own set of circumstances.  

The fair reason for dismissal in almost all cases involving social media will be the conduct of the employee and the decision can only be reached after a fair disciplinary process has been applied.   If gross misconduct is concluded due to an employee’s behaviour on social media, dismissal may be within the band of reasonable responses.  

A gross misconduct dismissal due to an open profile with historical derogatory comments about colleagues and an employer was upheld by an Employment Tribunal and case law has established that entries on social media can be used as evidence in disciplinary proceedings, but derogatory comments will by no means always justify dismissal.  

There is a burden on the employer to justify dismissal by demonstrating the impact of the comments and the measures they have taken to communicate and train employees about social media use.   

It is advisable to have a social media policy in place which sets out what employees can and cannot say about the organisation and employees must be aware of it.   Article 8 of the Human Rights Act gives a ‘right to respect for private and family life, home and correspondence’ and case law suggests that employees have a reasonable expectation of privacy in the workplace.

Polly Davies

Legal Advisor

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