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How far should you go in monitoring employees’ social media?

19 Nov 2018 By Martin Thomas

Employers must balance the need to mitigate risk with important new EU legislation, explains Martin Thomas

As the number of employee dismissals would testify, criticism of the company, bosses, work colleagues and customers and the sharing of confidential or inappropriate information on social media have become all too common occurrences.

In most cases, these actions have been inadvertent, reflecting the confusion between the private and public domain – people considering their comments as simply private conversations between friends. There is also what psychologists term ‘the online disinhibition effect’ – people say things on social media that they would never say in other circumstances. 

The risks to the reputation of companies and employees mean that employers should not turn a blind eye to their employees’ use of social media. They have a responsibility to protect their corporate reputation but also a duty of care to their employees to take this issue seriously.  However, they need to proceed with caution and avoid taking too heavy handed an approach.  

There have been examples of HR directors checking the Facebook accounts of employees taking excessive sick leave to establish whether they are truly unwell. Employees have also faced the threat of dismissal when employers discover evidence of excessive drinking or using racist, homophobic or sexist language outside the workplace. Despite the temptation to snoop, data protection regulations in most countries require employers to have a good reason to check their employees’ social media activities.   

The guidance provided by the Article 29 Working Party – an EU independent advisory body on data protection and privacy – may not sound like the most riveting of reads, but its ruling on the monitoring of social media in the workplace has huge implications for every business.  It ultimately shapes how the data protection authorities across the EU will choose to apply existing data protection law to the use of social media monitoring.  

The UK government has agreed to adopt the same approach, so post-Brexit, businesses in the UK will find themselves bound by the same legislation. In an effort to find 'the balance between the legitimate interests of employers and the reasonable privacy expectations of employees’, the Working Party put the onus on the employer to demonstrate that the monitoring of social media activities is reasonable, proportionate and ‘relevant to the performance of the job'. 

It also challenged the assumption that employers can legitimately scrutinise any publicly accessible data: “Employers should not assume that merely because an individual’s social media profile is publicly available they are then allowed to process the data.” The ruling is consistent with the direction of travel of EU data protection legislation, which prioritises the rights and freedoms of employees above the interests of employers. The members of the Working Party are clearly concerned by the potential use of screening to collection 'information regarding their [employees'] friends, opinions, beliefs, interests, habits, whereabouts, attitudes and behaviours' and the impact this might have on people's careers and job prospects.

The solution is not to try and control employees’ use of social media, but to use ‘light touch’ management. As part of a structured training programme, employers should explain to their staff that they reserve the right to monitor their social media activities where it might have a negative impact on the welfare of fellow employees or the reputation of the organisation. 

They should invite any members of their team to report any inappropriate behaviour to senior management and remind them that criticising colleagues and customers is completely unacceptable, as is any form of racist, sexist or homophobic comment.  At the end of the day, they are protecting individuals as much as the company – and often, the knowledge that the boss might occasionally check out what they are saying on social media can have a suitably sobering effect. 

Martin Thomas is author of The Financial Times Guide to Social Media Strategy: Boost your business, manage risk and develop your personal brand

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