The use of social media and networking sites both inside and outside the workplace is widespread. Maintenance of employees' rights to privacy and an employer's own expectations regarding worker conduct and the safeguarding of a company's business interests and reputation requires a balanced approach and careful management.
Employers are increasingly recognising the marketing dividends of social media and networking sites such as Facebook, LinkedIn and Twitter.
However, from a legal point of view, issues such as breach of anti-discrimination provisions (for which the employer may be held responsible), defamatory or damaging publications, including inadvertent disclosure of company confidential information, and the cost to the business of working time lost to social media are very real concerns.
On Facebook, depending upon an individual's privacy user settings, information such as religious beliefs, marital status, political preferences and affiliations and other personal content not evident from an application form may be involuntarily disclosed to the world at large, or to a wider cross-section of people than originally intended.
In the 2010 Microsoft commissioned survey "Online reputation in a connected world", 41 per cent of the recruiters and human resources (HR) professionals surveyed said they had rejected candidates based on information found online, including from social media sites such as Facebook.
Clearly, there are a number of risks associated with rejecting or unfairly filtering candidates based on online information. Most notably, the DIFC Employment Law provides that an employer shall not refuse to employ a person because of a protected characteristic (namely, race, gender, marital status, nationality, religion or disability). Employers should, therefore, ensure that any decision not to recruit an applicant and/or to reject their application is based on sound and legitimate grounds and is not tainted by discrimination.
Facebook or Twitter could potentially be used as a forum for work-related discussion. On LinkedIn, employees may create lists of their contacts or networks, which could include customers, clients and suppliers acquired through their work.
Employees need to be mindful of the dangers of unwittingly exposing themselves to civil or criminal liability as a consequence of their online actions or activities. Article 905 of the UAE Civil Code states that "the employee must keep the industrial or trade secrets of the employer, including after the termination of the contract, as required by the agreement or by custom".
Article 379 of the UAE Penal Code also provides that it is a criminal offence for an individual to use a third party's information without consent for his own or another's advantage where that information was gained as a result of that individual practising his "profession, art or craft". In addition, Article 120 of the UAE Labour Law provides for instant dismissal — without notice or payment of end of service gratuity — where an employee divulges confidential information.
Company policies and employment contracts should define what information is considered confidential and clearly set out employee obligations during and post-termination of employment.
It is important to bear in mind that confidential information does not retain its quality of "confidentiality" forever. What makes it confidential is its value as an asset of the business and such asset value (e.g. lists of customers, pricing policies, potential business opportunities, etc.) may tend to decline with the passage of time and depending on the transient nature of such data.
The extent to which employees' online activities are monitored during company time should ideally be clearly set out in an IT/social media policy, laying down the expected standards in terms of reasonable usage during working time, and employees should be informed, and consent obtained.
In other parts of the world, there has already been a steady stream of cases where damage to an employer's reputation has occurred as a consequence of employees' use of social media. For example, Virgin Atlantic took action against staff who criticised on Facebook its passenger class status, which was widely reported in the media.
Although each case is fact-specific, they nevertheless act as a salutary warning to employees that their "out-of-work" use of social media sites is not necessarily private and could have implications on their employment relationship.
The UAE Labour Law expressly provides that disciplinary penalties may not be imposed on an employee who has committed an offence outside the place of business unless the said act is relevant or connected to the business, the employer or its responsible manager. Accordingly, the employer has the onus of proving that the employee's online actions have had an appreciable effect on its business. However, Article 120 provides for instant dismissal where an employee is convicted of an offence involving honour, honesty or public morals. Again, a clear and robust disciplinary policy communicated to all employees and outlining acceptable standards of behaviour and covering issues such as the posting of inappropriate material online, together with the sanctions for breach, would go a long way towards assisting employers when seeking to justify any subsequent disciplinary action and perhaps even dismissal. It is critical for employers to make it clear that if out-of-work activities detrimentally affect the employer's reputation, the employer is entitled to take disciplinary action.
Under the DIFC Employment Law, an employer may also be held legally responsible for any discriminatory acts of their employees, subject to such acts having been committed in the course of employment. This could, for example, include cyber-bullying or harassment of employees or the posting of discriminatory comments or material on an individual's Facebook page.
In order to avoid liability, an employer must demonstrate that an employee who is allegedly responsible for the bullying, harassment, etc., acted outside "the course of their employment" and that it took reasonable measures to prevent such employee from committing the acts in question.
There are no rigid guidelines on the necessary level of preventive action, but a written equal opportunities policy that is very actively implemented will serve as a useful measure in this regard.
The writer is is an associate at UAE law firm Hadef & Partners.
Key points employers should consider:
- Incorporating social media into the recruitment vetting process carries risks;
- Implement and actively communicate a clear internet/social media use policy setting out clearly the company's expectations of acceptable and unacceptable behaviour, manner of use, ownership, access and the consequences of breach;
- Blanket restrictions and/or punitive measures on social media/internet use during working time is superficially attractive and will likely be met with strong employee resistance;
- Prevention is better than cure and the key is to strike the right balance between respecting the employee's private life and protecting your business;
- Be mindful of potentially being held responsible for your employees' online actions.
- Tips for employees:
- Ensure that conduct and expected standards of behaviour in the "virtual world" is not perceived any differently from conduct in the "real world";
- Be mindful that social media is not necessarily private and could have implications on your employment relationship;
- Care should be taken that postings on Facebook and/or other social media sites do not expose you to civil and/or criminal sanctions under the UAE civil and criminal codes particularly in the context of confidential information and defamation;
- Out of work actions which brings your employer into disrepute and/or is otherwise connected to your work may expose you to disciplinary sanctions.