The Facebook challenge

There is a blurring of the lines between employees’ social and professional lives

Mention the word “Facebook” to many employers and their response is likely to be an audible groan. However, some may have already embraced social networking websites within the workplace and have a more cheery demeanour, while a few may look quizzically and not know what Facebook and the like is. There is no doubt that as the popularity of Facebook, MySpace and Bebo, and the various other incarnations of social networking websites has risen over the last three years, there has been a challenge laid down for employers in terms of how they are going to deal with this phenomenon and radical change to the way we communicate.
There has been a great deal of press in recent times about the impact on organisations of these social networking websites. There have been warnings as to the dangers in opening up IT systems to the risk of viruses, by employers allowing employees access to these sites at work and of course the potential for staff to spend work time “poking” each other, which one hastens to add is an application used within Facebook to get another members attention, as opposed to working.
A drain on productivity Indeed, this has led many employers to take the step of banning social networking sites such as Facebook altogether, citing them as being a drain on productivity and an unacceptable intrusion of employees personal lives into the workplace. However, this has been a move that has now been criticised in some quarters. The Trades Union Congress (TUC) published guidance last year which stated that such bans were an overreaction. The suggestion by the TUC was that employers should show some trust in their employees and rather than imposing a blanket ban on access they should put in place clear policies setting out what was acceptable use of such sites. The reasoning was that while it was understandable that employers would not want employees spending hours a day on these websites, they should allow them access during their lunch break or before work, in recognition that employees spend much of their waking hours in work and it is a useful way of organising their busy lives.
A recent report produced by the think tank Demos suggests that employers should go a stage further than this and truly embrace social networking technology and encourage its use by employees in order to reap the potential benefits to be gained from it. The report has been born out of the fact that the majority of employees within organisations are now using social networking technology and this poses the question as to whether such organisations should embrace the technology, and look at ways in which they can exploit this to their own advantage, or shy away from it altogether by denying employees access to it. The report, Network Citizens: Power and Responsibility at Work, focuses on the significance of networks within organisations. It looks at case studies from six different organisations from different sectors and of varying size and investigates the networks that exist within them and how, if at all, they are utilising social networking technology.
Networking platforms
Orange was one of the organisations who took part in the study and they are in the process of developing their own internal network technology platform. This is in order to enable their employees to communicate with each other from every department in the organisation and every location, encouraging communication and enhancing collaboration between employees who might otherwise be divided by geography or even hierarchy. This is going to be based on current existing network technology platforms and therefore could mirror sites such as Facebook.
Other smaller organisations will obviously not have the resources to develop their own networking platform and therefore if they wish to utilise such a resource then they are likely to have to rely on those that are already in existence and which their employees are likely to already be familiar with, so it might be that Facebook would be used.
The Demos report concludes that smart businesses will recognise that social networking cannot be easily separated from professional networking and that by banning the use of social networking technology the organisation might damage itself in the long run, by restricting lines of communication between employees. It suggests that by embracing this technology one can improve organisational resilience, by strengthening the ties between employees, which could well be a vital attribute in the present economic climate.
Communication
The reasoning behind this is that providing access to such technology encourages employees to communicate. The report identifies that this should not only be between themselves but also with existing or potential customers and even ex-employees. The emphasis is very much upon bringing down the boundaries to communication, allowing employees to develop relationships that will benefit a business by allowing a free flow of ideas internally. Part of the motivation behind the Demos report was the recognition that there is a blurring of the lines between employees’ social and professional lives. However, this in itself can point to problems which employers might face if they were to adopt such measures.
If one takes an extreme example where an employer actively encouraged its employees to have their own Facebook “page” and to make “friends” with their fellow employees and potential customers, whether within work time or not, then that employer is proactively allowing what could be considered sensitive personal information into another’s hands.
Protecting data
While an employer might not be the one technically “processing” the data, there should be caution over facilitating the distribution of this. Social networking sites like Facebook will have their own terms and conditions which relate to processing personal information and obtaining consent to this at the time of signing up to them, in order to comply with requirements under the Data Protection Act 1998. However, employers should be careful about relying on third party policies in this respect and ensure that it makes its employees aware that information posted on these sites will be distributed and that information which they would want to keep confidential should not be posted on them.
A typical Facebook page might include photos of an employee, details of their personal likes and dislikes, as well as conversations with other “friends” on Facebook, some of which might be of an inappropriate nature. In the case of some employees there may not be any great concern over exposing their personal lives to their professional colleagues and contacts, however should an employer be the facilitator of such sharing? Take the example of an employee who discovers quite by chance that he is the subject of comments by other employees through a social networking website allowed to be accessed within the workplace which are offensive, may constitute bullying and harassment or which are even discriminatory in nature. An employer may find it difficult to defend an allegation that it allowed bullying or less favourable treatment to occur under its nose. Indeed, if an employee is going to use such websites in order to make contact with customers and other employees for work related purposes, then there are further potential risks associated with this. There is an argument that the webpage could be construed as an extension of the workplace and an employer could therefore become vicariously liable for any inappropriate content contained within it, which could be damaging on many levels. Would an employer be able to effectively police such social networking sites and control webpages where the content is offensive, includes discriminatory language, defamatory comments, or even bullies other employees? This goes to the heart of the issue which is that if employers are to take up the recommendation from the Demos report, then they have to be sure that they can regulate the way in which the technology is used. They will need to ensure that it is not abused or used in such a way that could damage the organisation’s reputation or cause it to suffer any other sort of loss. If employees are to be encouraged to use this technology then they will need to be given clear guidelines as to what is and is not acceptable and this will require carefully drafted policies to be in place.
Indeed, it is probably advisable that employers make sure that social networking sites are covered by their internal policies, even if they are not to embrace social networking technology in the manner discussed above. Even without doing this there is a risk that the reputation of an organisation could be damaged by employees use of Facebook, or its various counterparts. The recent example of 13 Virgin Atlantic cabin crew being dismissed for posting derogatory messages on Facebook is a case in point. The cabin crew participated in a discussion on Facebook where the passengers were described as “chavs”, and it was stated that the planes were full of cockroaches. It is quite obvious that such comments could damage the reputation of Virgin Atlantic and therefore it took the step of dismissing them on the basis that they had brought the company into disrepute.
Indeed, this is by no means the first incident of its kind. An Argos employee was dismissed last year, rather ironically, for setting up a thread on Facebook entitled: “I work at Argos and I can’t wait to leave because it’s sh*t.” A case of be careful what you wish for, perhaps.
In both of the above examples this was conduct which clearly took place outside of the workplace, yet resulted in the employees being dismissed. As far as we are aware there have been no well publicised legal challenges to the dismissals as of yet, however, an issue for employers will be what action they can take as a result of employees posting comments or information on Facebook. The fact that any such the action takes place outside of the workplace should not preclude an employer from acting in relation to it. However, in order to do so it will need to demonstrate that there has been some breach of trust and confidence, or other such consequence that enables it to dismiss or otherwise discipline an employee. Here, once more, the need for a clear policy covering this area is apparent.
Social networking technology clearly does pose a challenge to employers. However, whether the answer is to embrace the technology in the way suggested by the Demos report is certainly not clear cut. It is likely that a great deal of time and money will need to be spent implementing not only the practice of using social networking technology itself, but also the systems and policies which will be required in order to enable organisations to have some comfort that they are protected against the technology being abused. On that basis, it is likely that employers will require more evidence of the benefits of using such technology before they jump on this particular band-wagon. Like it or loath it social networking sites are here to stay and employers must adapt quickly to the changing landscape of employee communication. NLJ
Stephen Robinson is a partner and James Pike is a solicitor at Davies Arnold Cooper LLP

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