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Wednesday30 July 2014

Can my employer monitor my private Facebook pages?

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Legal expert David Matheson explores the rules regarding use of information gathered from social media outlets

Question
I heard an item on the local radio here in Abu Dhabi that said employers can pay a subscription to open up employees’ private Facebook pages. Moreover, about 90% of employers do this, they said. Is this legal?

Answer
Viewing potential employee’s Facebook page is a tempting prospect for some employers, although one which is fraught with danger. Facebook’s focus is topics that should be avoided in interviews: age, relationship status, sexual orientation etc. You may uncover information that you can’t bring up at the interview, e.g. that a candidate is pregnant.

Even though the information is in the public domain, such use of Facebook could constitute unfair processing under the Data Protection Act (DPA), and could make your company liable to fines by the Information Commissioner’s Office. Behaviour such as creating a fake profile to “friend” a potential or current employee with a view to finding out more about them is also off-limits.

The key for any company wishing to use Facebook for vetting revolves around the individual’s expectation; have you made it clear, and does the potential employee expect, that you might take a look at Saturday night’s photos and Sunday morning’s status update? The key for an individual who wants to avoid employers viewing their profile is to ensure that their privacy settings are set to maximum.

A cautionary tale brings this into stark relief. Last year, a Wetherspoons manager posted unflattering comments about customers on Facebook which she assumed were private. They weren’t. A quick status updated ended in the customer’s daughter viewing the comments, complaining, and the employee losing her job.

Even in the absence of irate relatives, it is still possible to monitor employees’ social media activities at work. In practice, courts are wiling to accept that employers can monitor employees without breaching privacy-related human rights, as long as the surveillance is proportionate. The Employment Practices Data Protection Code, which assists employers in complying with the DPA advises that employers undertake an “impact assessment” before carrying out any monitoring.

Misjudging the appropriate action could see employers being subject to unfair dismissal claims. For example, being sick and being on Facebook aren’t mutually exclusive: any claims that an employee is bunking off based on their online presence should be fully and appropriately investigated. Conversely, failure to take action if an employee is harassing another via Facebook at work could lead to a constructive dismissal claim.

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