HOW should an employee react to a “friend” request on Facebook from his or her boss? On one hand, the employee may worry that doing so will give access to one’s thoughts and (what might be considered) prejudices online. On the other, there will also be concern that the boss may take rejection badly and this could have an adverse effect on future career prospects. A classic Catch-22 situation.
However, let’s assume the employee takes a deep breath and clicks the “allow” button; there are several potential areas of concern which require careful thought about future Facebook use – for management as well as members of staff.
For a start there is always the chance that the boss’s request may have been less about a desire to become a “friend” and more about monitoring staff use of social media during working hours and, if necessary, using this as a reason for disciplinary action. Either way, ensuring they have robust policies regarding acceptable use of social media is becoming of increasing importance to employers.
Whether an employer has a right to discipline an employee for social media use will depend very largely on the contract of employment or content of the staff handbook. If either of those specifically prohibit the practice then at any future employment tribunal the company will be on firmer ground than if “reasonable use” was permitted, although the tribunal will have to define “reasonable use” in each individual case.
In recent years tribunals have confirmed an employer’s right to use information gleaned from social media as a valid reason for dismissal. In one recent case, an employee was sacked for posting “OMG I hate my job! My boss is always making me do s*** stuff just to p*** me off”, perhaps forgetting that she and he were already Facebook “friends”. He replied to the post stating, “that ‘s*** stuff’ is your job. You seem to have forgotten that you have two weeks left on your six-month trial period. Don’t bother coming in tomorrow. I’ll pop your P45 in the post.”
As to the “fairness” of disciplinary action in such cases, there has been an increase in the incidence of employees covertly recording formal disciplinary meetings without the employer’s consent and then seeking to rely on this at any future tribunal. However, recent decisions have held that even covert recordings which are “very distasteful” and “discreditable” will not alone render them inadmissible. So, it would be deemed entirely reasonable for a boss to rely on an employee’s social media content at the same tribunal.
These instances alone are not enough reason for discouraging mutual use of social media because there are also advantages such as facilitating an exchange of ideas, encouraging inter-personal or inter-departmental communication or simply instilling a mutual sense of pride in the business.
But it is well to remember that there may be a darker aspect – for both sides. «
Simon Allison is partner – head of employment law at Blackadders.