From education to employment

The legal ins and outs of social media

The use of social media is having a massive impact on colleges, which are often faced with dealing with difficult and potentially damaging comments being made about them that could affect their reputation. Further, colleges are increasingly relying on social media evidence when dealing with disciplinary and grievance issues. But what is the legal position on this and how can colleges best protect themselves?

Social Media is the broad term given to describe the latest evolution of internet web based communication platforms that enable users to connect and interact rapidly in a variety of different formats. The primary areas where social media impacts on colleges relate to recruitment decisions and the use of social media in the workplace generally.

Recruitment

Colleges are often using social media forums when making recruitment decisions such as looking at information on an individual’s Facebook profile. There is no specific legislation in place to prevent colleges from doing this. However, any information gleaned from such formats that are used when making recruitment decisions could expose colleges in a variety of ways. Given that such information would constitute personal data (and in some cases sensitive personal data if it related, for example, to religious beliefs, trade union membership or sexual life), colleges should ensure that they comply with data protection legislation and only process that data lawfully. The Data Protection Code of Practice provides helpful guidance on ensuring compliance with the law.

For instance, given the amount of information available about candidates on social networking sites, colleges could face discrimination claims if they check this information. While a job applicant’s sexuality or religious beliefs would never be usually included in their CV or application form, colleges could gain access to that information with relative ease. While employers would invariably provide a different reason for any rejection, if an applicant became aware that information had been obtained via social media, they could bring a claim for discrimination in an Employment Tribunal. In discrimination cases, inferences could be drawn where there is no clear explanation for rejection and the evidence could then point to a discriminatory reason.

The simplest solution would be to avoid social networking sites. However, if social media is used in whatever way to vet candidates, colleges should avoid making employment decisions based in any way on a protected characteristic under the discrimination legislation. Any decision on recruitment should be clearly documented so that the real reasons for rejection can be produced if the process is challenged. It would also be prudent to use the same protocols for social media screening of applicants or employees regardless of their protected characteristics to avoid liability for discrimination.

Social Media in the Workplace

The headlines are all too commonplace these days where employees have been dismissed for making derogatory comments on Facebook or Twitter and such cases only highlight the growing use and issues that are associated with social media.  Who can forget the recent headline when teachers were facing disciplinary action for calling students “thick and inbred” on Facebook? ACAS has produced guidance on this area, covering a range of issues such as bullying and performance in the light of the use and abuse of social media.

The use of social media can be beneficial to a college, providing useful information to staff and learners. Blogs and similar media are a useful way to recruit staff and learners alike and show that the college is using modern forms of communication.  The corollary argument is that colleges could be held vicariously liable for discrimination and bullying where inappropriate comments are posted by members of staff. Employees may also post or share confidential information online that could expose the college in some way. In addition, there could be a loss of reputation to a college where employees post inappropriate comments, information or videos and there is a link to the college.

The use of social media is appearing with alarming regularity in respect of disciplinary and grievance issues.  All too often, investigation reports nowadays include documentation showing how social media has led to unprofessional behaviour and/or potentially gross misconduct situations. Ironically, the use of that media is often pivotal when taking disciplinary action or resolving a grievance that has been lodged.

Conclusion

Colleges should act now if they have not already done so. A social media policy should be adopted, which sets clear parameters about permitted use of social media, what is and is not allowed as well as a clear warning that comments made on social media sites should be treated as public, rather than private. If a college wishes to discipline an employee or a learner for that matter, the importance of a comprehensive and well-communicated policy cannot be overstated. Clear policies and procedures will be crucial to defend successfully any litigation that arises.

Matthew Kelly is a partner at law firm Thomas Eggar, which handles a wide range of related litigation, such as issues relating to FE governance and capital projects


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