Business Insight 4th Nov 2015

Privacy at work and on the web

Social media is an instant, powerful communication tool that has allowed companies to reach thousands of clients at the push of a button.  At the same time it has increased levels of insomnia among Human Resource managers.

Social media

Not just the notion of 'cyber slacking' at work, but an employee with a grudge or a few drinks under their belt and a smartphone can spell disaster for the individual and the organisation.

Legal ramifications

There are many stories abound of an ill-thought post on Facebook or Twitter that has brought down an individual, with one recent case involving SBS sports reporter Scott McIntyre. His tweets on Anzac Day questioned the history of the 'Anzac myth' on his officially verified Twitter account, which has 30,000 followers.

SBS terminated his employment immediately, alleging he breached its social media policy. Scott McIntyre, in turn, is suing SBS for discrimination over what has been referred to as a 'political sacking'.

While many rallied to denounce SBS for denying McIntyre his right to free speech, others argue that McIntyre still represented SBS.

It raises the question whether it will suffice to add a disclaimer to a social media account stating "these views are mine and do not reflect my employer" as is often seen on Twitter.

In an article in The Age last year, Fair Work Commissioner Leigh Johns said "it is foolish of employees to think they may say what they wish on their Facebook page with total immunity from any consequences."

Unaddressed issues in policies

The case of Scott McIntyre – and others just like it – have brought the issue of privacy and work into the limelight.

More than ever, people aren't bound by office hours, checking work emails on their commute or even on days off, for example, says Professor Julian Teicher, Director of the Australian Consortium for Research on Work and Employment (ACREW).

"I think there's an underlying and unaddressed issue in policies, which is that it's a swings-and-slides thing," he says

"The policies need to be careful not to undermine employees' sense of what's a fair deal."

The issue of privacy is difficult in the workplace, because there is no real legal limitation on employers accessing employees' stored data.

It is paramount that all avenues are used by employers to inform employees about company social media policies, says Professor Teicher.

"Courts and tribunals are tending to take a hardline approach on such issues where you are using an employer resource, even in your own time, even if you're using your own internet connection – they are still taking a hardline on breaches of employer policy provided it has been properly communicated to employees."

Enforceable framework

Professor Teicher says in many European countries there is a much more legislative-based, enforceable framework that focuses on the protection of the rights of the individual at work.

"In Australia our system is still derivative of common law and the starting point is that the master controls all that happens at work. The biggest problem is that we think we've got a right to privacy, but we don't. Except in very, very limited circumstances," he says.

"At home we have rights to privacy but we know even that's limited. But to think you have a right to privacy in the workplace is not correct. It's more that we have an expectation to privacy in relation to certain material."

In his paper Managing electronic communications: a new challenge for human resource managers, Professor Teicher argues that – with the increasing prevalence of issues arising from the use and abuse of social media at work – it is timely that HR managers be 'employee champions' as they are the regulator of employees' access and use of the internet.

In Australia our system is still derivative of common law and the starting point is that the master controls all that happens at work. The biggest problem is that we think we've got a right to privacy, but we don't. Except in very, very limited circumstances.

Professor Julian Teicher

He says employees may not understand the importance of such policies, however. This is in part because communication through email and social media sites has become normalised.

"Arguably, employees also have some expectation, or at least interest in, a level of privacy at work. This includes a right to personal communications, which is threatened by electronic monitoring by employers," he says.

Ultimately, employees are entitled to private opinions and to express them, but common sense should dictate discretion in the use of social media when it comes to events at work.

  • julian-teicher-pr

    Professor Julian Teicher

    Department of Management Monash Business School

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