An employee is off sick when a colleague approaches you and tells you that they have seen photos on social media of the employee at a music festival. The photos show that the individual seems to be rather well. What should your next move be in managing employees’ social media use during sickness?
Social media access
Social Media can allow different access. It may be that the employee’s colleague, or even manager, is linked to a social media account by “following” or being “friends” or in the same “circle”. However, access can be “public” meaning that anyone can access information posted.
As a result of the posting, you may feel that the employee is lying or it could be that they have recovered but as they are still covered within a period of a ‘sick note’, has decided to attend a commitment that they may have previously made. Whilst your initial reaction may be to call the employee and ask what is going on, you need to be careful. By making that call it can be seen that you are making the allegation of fraudulent sickness absence so you must be confident with your evidence.
The evidence will be the posts and photographs that are on social media. It is legal for employers to look, or search, for an employee’s social media accounts. If the privacy settings have been left unrestricted then it is considered the information is in the public domain. You need to take a copy of the photographs and posts (in case they are later removed).
Only then should you contact the employee and ask them to attend an informal meeting. You do not need to, and should not, tell them why at this stage, or share the evidence that you have collated from their social media account. This is because employees are only entitled to see evidence once formal disciplinary procedures have commenced.
However, if the social media accounts have restricted privacy settings the situation is slightly different. You can not insist that the colleague who has brought this to your attention logs into their account and obtains the information you require. You can ask the employee to provide a witness statement detailing exactly what they have seen on the account. Again, this evidence should not be disclosed yet.
Once you have had the initial interview with the returning employee to assess their health situation, you can then decide whether you need to go ahead with formal proceedings.
However, if you decide to proceed with and handle this situation (and it may be very appropriate to do so) then please do ensure that you are fully compliant with Employment Law and with your organisation’s policies and procedures.
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