Social media is now an everyday part of our personal and working lives. As a result, the distinction between what is private and what is public can become blurred.
This has consequences for both the employee and employer. Inappropriate social media use by an employee could amount to misconduct and lead to disciplinary action including dismissal. Equally, employers who access an employee’s private social media account may be infringing their human rights.
The Human Rights Act 1998 provides:
- the right to respect for private and family life (Article 8) – this is a qualified right and only applies where there is a reasonable expectation of privacy
- the right to freedom of expression (Article 10) – this right is also qualified, and can be interfered with for the protection of health or morals and the reputation, rights and freedoms of others
In Barbulescu v Romania an employer asked an employee to create a Yahoo account to respond to clients’ inquiries. The employee used it to send and receive personal messages. After monitoring his account, the employer dismissed him, and his claim that his rights to respect for private and family life under Article 8 had been breached was ultimately rejected by the court.
However, this case does not mean that employers are free to monitor employees’ private communications. Whether the right to a private life is infringed depends on whether the employee has a ‘reasonable expectation’ of privacy. In this case, the employee’s contract specifically forbade the personal use of work computers.
Where an employee makes a public comment about their employer, even outside work, and the employer subsequently objects, a court is unlikely to find that the worker’s right to freedom of expression has been breached. But if the employer is not mentioned by name, courts may consider that there has been no damage to their reputation.
Employers who monitor employees’ use of social media where the employee has a reasonable expectation of privacy may be in breach of the implied term of trust and confidence if they have acted unreasonably and without proper cause.
Where an employer accesses an employee’s personal data they must comply with the Data Protection Act 1998 (DPA), which is intended to provide safeguards on the use of personal data.
The Information Commissioner’s Office has produced an Employment Practices code, which gives detailed guidance on monitoring at work. In short, it recommends that employers:
- carry out an impact assessment which clearly sets out the business reasons for monitoring
- inform staff about the nature and extent of monitoring, and how long information will be retained
- consider if monitoring is proportionate and whether alternative means of achieving the business reasons were available
- only carry out covert surveillance of social media activity in exceptional circumstances, e.g. when there is evidence of a crime being committed
Balancing rights and protections
The best way to balance the rights of employees with protection for employers is to formulate a clear social media policy. The policy should be widely publicised and all staff trained on it. A good social media policy should include the following:
- What use of social media is allowed in the workplace and when
- Whether certain sites can be used in work time and for what purposes (e.g. LinkedIn)
- Whether an employee is required to have separate accounts for personal and professional use, guidelines on their purposes and what each can be used for
- What comments are acceptable and appropriate
- What sort of material can be posted
- What kind of conduct – taking into account the impact on colleagues, clients, customers and the organisation’s reputation – may lead to disciplinary action or dismissal
Employers should also make clear that using social media to harass colleagues because of a protected characteristic (such as age, disability, pregnancy and maternity, race, religion or belief, sex and sexual orientation) is unlawful under the Equality Act 2010.
Jo Seery is a professional support lawyer with Thompsons Solicitors. Legal Eye does not offer legal advice on individual cases. MiP members in need of personal advice should immediately contact their MiP national officer.