The global explosion of social media poses huge and often daunting challenges for employers. Social media has been accepted in many industries as a useful part of modern working life, with the internet increasingly being used as a means of marketing, staying in touch and responding quickly to key events. However, the benefits of social media can come at a price. Reports estimate that the misuse of social media by workers costs Britain’s economy billions of pounds every year. On top of this employers must contend with issues such as defamation, cyber bullying, harassment, invasion of privacy and freedom of speech. Social media has evidently created a myriad of “HR accidents waiting to happen” for employers.

Using information obtained from social media websites
Looking at a prospective employee’s social media page where there are no privacy barriers in place is unlikely in itself to cause any issues. The problem lies in what the employer chooses to do with the information they discover. It is fairly common for employers informally to use information on social media sites to vet job applicants. However, employers who choose to look at social media profiles open themselves up to potential breaches of discrimination and data protection law. Discrimination against an individual on the basis of a protected characteristic, such as their gender or race, or the processing of personal data without specific informed consent (which might include forwarding material to a colleague) is prohibited. Such basic information is usually easily identifiable from even the most securely protected profile.

Employers may consider telling applicants that checking social media forms a part of their recruitment process. Whilst that is a step in the right direction, strong candidates with unusual lifestyles or strong religious beliefs may be deterred from applying as they may suspect that such information will affect a recruitment decision. In practice the risk of a discrimination claim coming to fruition in such circumstances is low as an applicant will potentially find it difficult to prove that they have been discriminated against.

Similarly if a potential job candidate had an open Facebook profile, on which a number of photographs of him dressed as a woman were available, an employer must think carefully about what is done with that information. If, for example, the Head of HR decided to print a copy of the photographs to show their manager, or sent a link to the photographs to another team member both acts would be an unlawful processing of sensitive personal data. Breach of the Data Protection Act (DPA) can give rise to fines (payable potentially personally by directors of a company) of up to £500,000. In certain circumstances, the directors or officers of a company can also have personal criminal liability.

Whether social media forms an official or unofficial part of a business’ recruitment policy, employers must remain alert to potentially discriminatory practices which may open the gateway for both conscious and subconscious biases negatively affecting the business’ recruitment strategy or working environment.

Monitoring social media in the workplace
One of the biggest problems posed by social media is the loss of productivity in the workplace. IT may monitor internet usage to check that employees are not visiting unlawful sites and, arguably, to ensure that employees are actually working. To give maximum flexibility, employers should have a social media policy which includes a provision allowing for monitoring at any time and tells employees clearly that browsing on work equipment may not be private. The Information Commissioner’s Office (ICO) enforces the DPA and produces a (lengthy) Employment Practices Code which gives guidance on such areas.

Many companies physically block access to social media sites during working hours, or entirely, on work IT equipment but in doing so lose the positive aspects of social media. A policy spelling out what is and is not permitted is a first step to ensuring good order but must be consistently applied to be credible. An employee who is disciplined for abuse of IT resources and wasting company time could legitimately push back on a disciplinary sanction if the CEO, who is subject to the same policy, is known to watch the sporting events online on summer afternoons.

Any modern social media policy worth its salt must encompass personal IT kit such as iPhones, iPads and BlackBerries and employers should ensure that any trade secrets held on such devices are expunged at the expiry of the employment relationship.

Social media and disciplining employees
Where employees use their social media profiles to criticise, or in even more extreme cases, harass colleagues, employers could in certain circumstances also be held vicariously liable for their actions. One method of employers protecting themselves from such claims is to ensure that the business’ social media policy extends the scope of the grievance and disciplinary rules to cover inappropriate comments and postings on social media sites.

Additionally employers can face the difficult predicament of deciding whether to discipline an employee on the basis of information available on their social media profile, such as drug taking, particularly if the employee can be linked back to the employer. An employer’s desire to protect its reputation may collide with the employee’s rights of privacy and freedom of expression and it can be a mistake for an employer to assume that because personal information is publicly available, the employee has no right to privacy. The real question for consideration is whether it is proportionate and fair to discipline or even dismiss the employee for what has been done or is evident online. Arguably it can only be considered a valid concern if the illegal activity negatively impacts on the individual’s professional life. Concerned employers should consider drafting a policy which allows for the monitoring of employees’ social media profiles and the use of such information to form part of any disciplinary action.

Social media and the business’ reputation
Employers must also consider how the manner in which employees use social media can damage the goodwill and reputation of the business. An employee who uses social media actively to espouse their strong views on topical issues that may cause offence, such as immigration, can have a damaging impact on the employer if a connection between the two parties can be made. A simple yet effective method of avoiding such negative inferences being made is to request that employees should not have the business’ name, logos or any other distinguishing feature identifiable on their personal social networking site.

Positive impact of social media
Although the problems posed by social media are not likely to disappear, employers should also consider the potential benefits. Aside from the obvious potential low cost marketing and PR that using Twitter, Facebook and other sites can provide, employers can also create cohesion and teamwork amongst their employees by encouraging the creation of virtual internal communities for the sharing of information and professional know-how for little or no cost. Additionally, allowing employees to network with other professionals in an open and transparent way may open up previously untapped sources of business opportunities.

Drawing the line between what is personal and private has become increasingly difficult with the rising popularity of using the internet and email at work. Employers may choose to have a blanket ban on the use of all forms of social media, but to do so may run the risk of missing out on the positive aspects of social media and employers could fall behind competitors in developing cutting edge marketing strategies. In any event, a ban could potentially be unrealistic and difficult to enforce as many employees would simply bring their personal smartphones and iPads into work instead. A balanced social media policy can be effective, enforceable and provide businesses with a sufficient degree of security and certainty. The rise of social media is unstoppable, but it is not unmanageable.