Considering monitoring employees’ social media?

Jan 13, 2020 | Business Principles

Social media growth in recent years has been phenomenal and this has inevitably raised the question for many employers about how (and if) they can or should monitor their employees’ activity on social media, with their corporate reputation, confidentiality obligations and Data Protection requirements in mind.

There is no specific regulation of social media, so other legislation applies, including Data Protection, Equality and Human Rights laws. Before you start checking up on your staff, or potential staff, bear in mind the following ten tips so that you are fully aware of where you stand and can take adequate steps to protect your business.

Recruitment vetting

It is tempting to have a quick Google of applicants to check out their social media activity. Employers can feel it might give them an insight into their character, their personality, and be more revealing about them than perhaps a CV or application form might be.
But be careful. Here are some things to consider before conducting social media checks on potential recruits;

1. Tell them before you do it

Make sure candidates know you intend to vet social media activity before doing so. This gives them a chance to clean up their activity and check their privacy settings, both of which are to be encouraged anyway.

2. Make sure it’s proportionate

Consider the role they are applying for. Does their social media activity actually matter in terms of the company reputation, or undermining their ability to perform the role in question? For a senior executive in a high profile company, or in a public-facing role, that is more likely than for a very junior, low-profile member of staff.

3. Check the accuracy of what you find

Information you find about a person on social media cannot be relied upon to be accurate, so before making any decisions based on it, put your findings to the candidate and listen to their comments.

4. Protected characteristics

You may well have access to information about one of the protected characteristics under the Equality Act (ethnicity, sexual orientation, religion, etc) through social media which you would not have in the normal course of the recruitment procedure, sometimes even after you’ve met the person. Be aware that if a candidate is rejected for a role, and knows you have access to this information, there is a risk they could claim they were discriminated against.

5. Why are you doing it?

Consider before you conduct these checks, what your motives are for doing so. If you have a genuine, justifiable concern and feel that their social media activity is entirely relevant to their suitability for the job, that’s one thing. But if honestly you are actually just being nosey, that’s a sign that it’s probably not a good idea!

Monitoring existing employees’ activity

Many employers monitor their existing employees’ social media activity and you may want to consider doing that. Before you do, think about the following:

6. Clear monitoring policy

Make sure employees are fully aware that you are monitoring, what you are monitoring and why you are monitoring. Monitoring without their knowledge is likely to be a breach of the Data Protection Act.

7. What is the monitoring for?

Are you planning to monitor usage levels during work time for productivity reasons, or monitor actual postings made on sites for confidentiality breaches, damage to company reputation or other reasons?

8. Acceptable behaviour on social media

You need a social media policy (here’s why) and should ensure your employees are absolutely clear about what behaviour on social media is acceptable, what is not acceptable, and what the consequences of unacceptable behaviour may be. Ignorance and unthinking behaviour from employees is a large part of the problem in terms of the level of social media-related disciplinary proceedings we see.

9. Think about privacy

Your staff do have a right to privacy. In the event of a breach and a disciplinary procedure related to social media use, something that is often relied upon as a defence is the employee’s belief that their postings should be considered private. Commonly, particularly on Facebook, you as an employer will find out about a breach because someone who is “friends” with the employee in question informs you about it.

But regardless of anyone’s privacy settings being configured only to allow access to “friends”, if the posts could be considered publicly available, that argument is weakened. Posts can be forwarded and copied, and in any case, some people have hundreds of “friends” on Facebook. Obviously with posts on Twitter, these are usually entirely publicly available.

In addition there are circumstances where the right to privacy is overridden, depending on the nature of the role and the postings in question, however these circumstances are exceptional. If you feel this might apply, do seek advice before taking any action.

10. What about freedom of expression and freedom of speech?

We all have a right to express our views, and this includes on social media. Many employers have policies requiring employees to desist from expressing political beliefs or refrain from posting anything publicly which could be considered discriminatory, or similar, with a view to protecting their own reputation. Including that in guidance about how to behave on line is sensible, but be clear that it applies to personal social media as well as work-related activity, and bear in mind the nature of the role, the extent to which the employee is identifiable as representing your business, and the nature of the posts in question before taking disciplinary action, and bear in mind that, however distasteful someone’s views may be, they do have a right to express them.

If you’d like any further advice if you’re considering monitoring employee’s social media, do get in touch.