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Employment Law Worldview

Can I Like, or Poke my employees, or get their social media passwords?

Posted in Social Media

Social Media is everywhere. In fact, that is probably the point of it. It encourages debate and discussion. It provides instant access to celebrities, politicians, anyone in fact. It can be fantastic. It can be empowering.   But it can also be dangerous. Users of social media, both writers and readers, employers and employees, must accept the responsibility that comes with it.

Social media and employment law are growing ever closer. More and more Employment Tribunal cases revolve around dismissal for comments made on one or other of the forums available. So employees have to be careful, as we know.  But what about employers? They are certainly not off the hook here.

This blog is not the place to go into detail about the need for employers to have social media policies (but you really should). Nor is it the place to remind employers of the need to ensure they know who controls their social media accounts, and to be able to restrict access to them and to reclaim control at any time. The media coverage of the exiting HMV staff who hijacked the Company’s Twitter account last week is warning enough.

However, there is a growing debate around the question of whether employers are entitled to ask prospective or current employees for their social media passwords (whether for Facebook, Twitter or others) in order to see what they are doing there. As my colleague Traci Martinez commented in her Blog back in June 2012 (see Here), several US States have made it clear that such an approach is not appropriate there.

In the UK, there is nothing to stop an employer from asking for such passwords. However, what you can do if the employee or candidate refuses is less clear.  It is probably lawful to refuse to take on someone who declines to provide their password, especially if given suitable assurances as to the use to which it will be put.  It is not necessarily the case that refusal would allow the fair dismissal of an existing employee, however – that would require the employer to show a good business reason for needing it.  That might be a real suspicion of abuse or leakage of confidential information, client details, etc., but it will not cover simple mischief or nosiness.

Perhaps most importantly, it is vital that no decisions are made about recruitment or continued employment based on information you do find on a social website relating to any of the protected grounds under the Equality Act. That may be evidence of a candidate’s religion, his friends, family status or gender orientation, etc.  That is where you will soon find that the tables turn in the individual’s favour, to the employer’s cost. Once it can be shown that the employer is aware of that information, the burden will in effect fall upon it to show that the real reason for the rejection/dismissal was something else.  So while you might find evidence on Twitter or Facebook that your job candidate is indiscreet, intemperate or illiterate, and seek to decline on that basis, you can also be saddled with knowledge which in retrospect you might have preferred not to know.  Overall, therefore, social media must be used responsibly. By both sides.