Social media activity: could older, less tech-savvy employees be at risk?

The use and variety of social media has exploded in recent years and, as a result, social media potentially has an impact on all aspects of the employment relationship from recruitment to termination.  Employers should consider if there is a risk that this could inadvertently lead to age discrimination issues.

What is age discrimination?
Both job applicants and those already in employment are protected under the Equality Act 2010 from age discrimination, harassment and victimisation. An employer must not directly discriminate by treating an employee or job applicant less favourably than others because of age without objective justification. Further, an employer must ensure that it does not indirectly discriminate by putting a provision, criterion or practice in place if that PCP disadvantages employees or job applicants of a particular age group without objective justification.

At the recruitment stage
One challenge facing employers in the current climate, when many businesses are encouraging social media use as a means of enforcing their market presence and drawing in the highest calibre of candidates, is to strike a balance between not being seen to exclude any age groups by over-reliance on recruitment through social media and keeping current in this increasingly digital age.

For example, it is easy to see how an older employee could produce figures to argue that requiring all job openings to be advertised solely on Twitter has a disparate impact on older employees who are less likely to use Twitter.

Employers should therefore consider whether to advertise posts through a range of media, rather than relying on social media platforms.

Employers also need to take care that the wording used in adverts is not discriminatory  For example, if employers were to advertise for jobs requiring youthful, tech-savvy candidates focusing specifically on the necessary qualities of drive and ambition this would amount to unlawful discrimination on the grounds of age.

Therefore, employers would be wise to draft all job advertisements carefully with a view to avoiding direct or indirect age discrimination.  It is inevitable that social media will continue to play a big part in the recruitment process for many businesses. Nonetheless, HR teams should review their recruitment policies to ensure that those individuals without access to Facebook, Twitter and so forth are able to source information on job opportunities from elsewhere.

Vetting using social media can also be problematic.  According to the Recruiter Nation Survey 2015, 87% of recruiters use LinkedIn to vet potential employees, yet the survey reveals many employers also look at other social media platforms with 55% using Facebook and 47% using Twitter.  LinkedIn is generally used in a more professional capacity as a tool for developing and maintaining client relationships and some 75% of its users are aged over 35.   However, other platforms, including Facebook, Twitter and Instagram tend to attract younger users. According to Emarketer, the most common age demographic for Facebook use is 25 to 34 and for Instagram users Social Media London reports it is 16-24.

This means that those aged over 35 may well not be visible on other social media activity.  If this is viewed as a negative, older employees could miss out if employers do not take steps to enforce an age neutral approach to recruitment through social media.  Conversely, younger candidates may have their life story on social media and employers should take care not to let this significantly influence their decisions.

During the course of employment
There may be tension between making assumptions based on a particular age group’s use of social media and potentially indirectly discriminating by taking positive steps to address the misuse or non-use of social media by specifically targeting those age groups.

For example, if an employer offers all employees over the age of 55 training on how to use social media, the employer could potentially be found to have indirectly discriminated against those employees on the grounds of age as the company might have several so-called “silver surfers” entirely proficient in using social media.  In reality a claim from older workers on the basis of this alone is unlikely but this could be used as evidence that the employer has made negative assumptions about the older workforce. Younger employees could also potentially claim that they are being treated less favourably because they have not been offered training.

Employers should therefore provide specific training and guidance on social media use and compliance with acceptable use policies to employees of all ages.  Consistency here is crucial.

Termination of employment
There has been a string of recent employment cases involving the misuse of social media. Much of the case law involves the employee claiming that they were unfairly dismissed following comments made by the employee on social media.

The outcomes of these cases demonstrate that an employee’s chances of successfully bringing an unfair dismissal claim will be significantly reduced if the company has made all employees aware of its social media policy.

Given the greater use of social media by younger employees there may also be a greater chance that they post comments which result in disciplinary action being taken and this means it is particularly important to make the policy clear to them.

Less savvy social media users (including some older workers) may also struggle to use privacy settings so training should also be provided on this. That said, recent cases have indicated that even where privacy settings have been used employees should be aware that judges have taken the view that comments made on social media are not necessarily private and employees of all ages should be made aware of this.

If employers put in place a clear social media policy and provide training to employees of all ages, this will reduce the risks faced by both social media users and their employers, regardless of their age.  After all, Ed Ball’s Day proves that it is not only the young that are prone to making mistakes on sites such as Twitter.

By Kerry Garcia, Partner & Jessica Ransley, Trainee
First published in EmploymentSolicitor.com, November 2016

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