Q: We are currently recruiting for staff. Can we check on applicants’ online profiles before deciding whom to appoint?
A: There is nothing in law preventing an employer from looking at publicly available material before offering an individual a job. However, doing so is widely considered to be contrary to good practice. This could also expose the employer to discrimination claims if it can be inferred that the reason for not selecting an individual was a protected characteristic revealed by the profile’s content. However, such a claim would be very difficult for the applicant to prove.
Q: Can we refuse to appoint a candidate because of what is in their profile?
A: Provided that the refusal is not discriminatory, then you can. Employers are free to recruit whoever they like, for whatever reasons they like, provided that no discrimination is involved. However, the situation may be slightly different for public authority employers who are bound to respect the rights set out in the European Convention on Human Rights. The right to freedom of expression will be relevant to job applicants who suffer adverse consequences for expressing their opinions on publicly accessible sites. It is possible that an individual applying to work for a public authority employer whose application is refused because of opinions he or she has expressed in public – such as on an online forum – could bring a claim under the Human Rights Act that such refusal was unlawful.
Q: What steps can we take to protect our business from employees publishing damaging material on a networking site?
A: If an employee publishes comments on a networking site which damage the employer’s reputation, the employer will be justified in taking disciplinary action against the employee, possibly leading to dismissal. Open access to online networks also raises the issue of potential breaches of confidentiality. For example, if a disgruntled employee reveals his employer’s trade secrets in a Facebook posting, the employer might seek an injunction ordering that the material be removed and may be able to recover damages for any consequent loss based on the employee’s breach of contract.
Q: Can we stop employees using networking websites at work?
A: Employers are perfectly entitled to prevent employees using office equipment and internet connections for personal use. Alternatively, employers may place restrictions on the types of site to which employees have access on company computers so that Facebook and MySpace, for example, are not accessible. It is strongly advisable for employers to set out a clear formal policy on internet usage. This should make it clear to employees what they can and cannot do and set out the applicable sanctions in the event that the policy is breached. Discipline and dismissal will not necessarily be unreasonable in the absence of such a policy, but having a clear policy and procedures in place reduces the risk of such proceedings being considered unfair.
Q: Can we monitor what employees write on networking sites to check that nothing damaging is being written about the business?
A: Employers may monitor employees’ use of the internet provided that the workforce is notified clearly in advance as to precisely what is being monitored. Covert monitoring without notifying staff is not permitted, save in exceptional circumstances such as for the purpose of investigating criminal activity.
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