FACEBOOK - WHAT IS YOUR STATUS?

The use of Facebook is widely written about these days.  Employers are warned of the need to consider how to monitor their employees.  Advice is given about whether to give use at all or to allow limited use only.  Policies are advocated to enable use and abuse of the site by employees to be managed by an employer.  Consideration is given by employers as to the benefit of Facebook.  

Is it another marketing tool which, if used effectively can be constructive? Or is it a way in which to monitor the behaviour of employees?

So what about using Facebook to gauge and monitor an employee who is absent through sickness? 

It is not unusual to have Facebook friends who you work with and it is not unheard of for your actual boss to be a friend.  Therefore it would be no surprise to learn that employers can and do use the site to monitor their employees.  It is easy to forget sometimes that they do this.  We have all seen people, off sick, posting entries on their Facebook page which if seen by an employer, may lead them to conclude that the employee is not sick at all.  Can they legitimately do this?  The short answer is, of course.

If this type of information is passed to an employer by another employee or just an associate, it can be used to invoke some form of disciplinary action.  Obviously, the employer has to carry out a reasonable investigation and also needs to offer the employee the right to defend themselves.  An employer should take account of the fact that just because someone is off work sick does not mean they cannot do anything.  Some illnesses require an employee to engage in activities which others may not consider appropriate.  It is prudent for an employer therefore to fully investigate the circumstances and any alleged condition before making rash decisions but Facebook can be a useful tool to an employer faced with an employee swinging the lead.

If an employer is uncertain how to conduct a proper or reasonable investigation of false absenteeism, it may also be prudent for them to use the services of a professional investigation company who can gather evidence appropriately and in accordance with the company procedure on disciplinary or dismissal processes.

And what if they find out that an employee is unhappy at work?  That the employee is posting inappropriate comments about work and their employers?  That they are posting photographs of colleagues without their consent?  What if an employee is writing comments which could be considered discriminatory, how does an employer deal with this? 

Defamatory or inappropriate postings about work, colleagues, clients etc can be used to instigate disciplinary proceedings.  They can also be used by the employer to eliminate prejudice.  Indeed if this type of information is uncovered, there is an obligation on an employer to act on it and to enforce their equal opportunity policy.  It is of course difficult to monitor the behaviour of an employee outside of work and it may be necessary to amend policies to set out exactly how such behaviour will be treated by an employer.  Actions which are done in "the course of employment" need to be tackled by an employer and there are many discreet, covert activities that an employer can undertake with the assistance of an investigation service, but even actions taken outside of employment may require attention by an Employer.

It is quite easy to breach confidences unwittingly on Facebook.  Employees need to carefully consider the postings they make or it could cost them their job.

Employers increasingly use Facebook, informally, in the pre-recruitment process to try and get an insight into the type of person applying for a job.  It may not be legal or ethical if decisions based on prejudice or Facebook entries are made, but proving this is the case is extremely difficult.

The reality of Facebook is that not only is it a portal used by millions of people, to socialise, advertise and empathise but also a tool used by employers at all stages of the relationship to monitor their employees, both positively and negatively.

Facebook - one friend request?

Written and submitted by Vanessa DiCuffa, Senior Associate, Employment, Freeth Cartwright LLP for Expert Investigations (www.freethcartwright.co.uk)