Social media in recruitment – is your business protected?

Recent years have seen an explosion in the use of social media and the growth seems set to continue. As of February 2015

• Facebook had more than 1.44billion users, half of which log in daily
• LinkedIn had 400million users in more than 200 countries
• Twitter had over 320million active users, with 34% logging on more than once a day.

A survey by Simply Hired found more than half of UK jobseekers now use social media to help them in their job searches. In response to this changing environment, recruitment agencies are using leading social media channels to  search and advertise, or build long-term strategies, such as investing in permanent, interactive online talent pools.

If you are actively encouraging employees to use social media for business purposes it is important to clarify the contractual boundaries. For example is personal access to sites like Facebook permitted at work? Are employees allowed to post blogs in the company’s name or does content have to be reviewed first? What will happen to any contacts made for business purposes if the employee’s employment is terminated?

Although social media can present exciting opportunities for businesses, the popularity of social media sites can present very real dangers when inappropriate or negative content is published online by employees. The accessibility and popularity of social media can make this the forum of choice for disgruntled employees to vent their frustrations about work.

In Crisp v Apple Retail, Mr Crisp worked in an Apple store. With a view to protecting their very strong brand image, Apple had a detailed social media policy in place and made it clear through their training and induction process that commentary on Apple products or critical remarks about the brand were strictly prohibited

Mr Crisp posted negative comments about Apple and their products on a private Facebook page outside of work hours. One of his colleagues who was a ‘Facebook friend’ printed out the posts and gave them to the store manager. Crisp was dismissed for gross misconduct and brought a claim for Unfair Dismissal.

The Employment Tribunal held that despite having private Facebook settings there was nothing to prevent friends from copying and passing on Crisp’s comments. The decision to dismiss was viewed as harsh but reasonable due to the importance of Apple’s image. Particular emphasis was placed on the fact that Apple’s image is so central to their success. During the disciplinary process Mr Crisp had been uncooperative and had informed Apple of other colleagues making derogatory remarks on Facebook. Mr Crisp complained that these employees had received warnings and had not been dismissed. The tribunal held that Apple had not acted inconsistently as the other employees had cooperated and apologised for their conduct.

In Whitman v Club 24 Ltd t/a Ventura, Mrs Whitman was a team leader with an exemplary employment record carrying out work on behalf of one of her employer’s key clients, Skoda. There was a company policy stating that employee’s obligations of confidentiality included posting information on social media sites but there was no specific social media policy.

One evening, at home, outside of work hours, Mrs Whitman posted a number of comments about her workplace on Facebook including saying she felt like she worked in a nursery and “I wont let the b******* grind me down”. The comments could be viewed only by Mrs Whitman’s Facebook friends who included a number of colleagues, one of whom reported the posts to her employer.

Mrs Whitman apologised but was dismissed by her employer on the basis that the comments could have damaged the employer’s reputation and its relationship with Skoda.

Mrs Whitman appealed the dismissal. During the appeal the employer accepted that the comments “were not too horrendous” and that a warning might have been more appropriate. The Appeal Hearing Manager also considered that a demotion might be a more appropriate sanction but decided that there was no such power under the company’s disciplinary policy. The dismissal was subsequently upheld.

The Employment Tribunal held that the dismissal was unfair. It found that the Facebook comments were relatively mild, they were not made about any specific client and there was no evidence that such comments, by a relatively junior employee, could, or actually did, harm the relationship with Skoda. The tribunal noted the absence of any express policy on use of social media and also considered that the company had misunderstood their own disciplinary policy as it did allow for demotion as a punishment. The tribunal commented that, even if the disciplinary policy had not contained reference to demotion, they could have suggested demotion as an alternative and agreed it with the employee.

What steps can employers take to prevent damage to their image and reputation?

Recruitment agencies who actively encourage their employees to make use of social networking may be more at risk of reputational damage.

These cases highlight the importance of employers putting in place comprehensive social media policies that deal with employees using social networks in connection with employment and strictly prohibit derogatory remarks about the business, its clients, products or services. Any such policy should make it clear that breach of the policy could result in disciplinary action.

If a breach of such a policy occurs employers will still need to follow a fair disciplinary process but the existence of a well drafted policy should offer considerable support to whichever sanction is deemed reasonable and appropriate. If employers allege reputational damage then they will need to take steps to demonstrate that the comments have, or are likely to result in such damage being caused.