Social media can dismiss you

The private use of social networks in the workplace

Social networks are becoming more and more important in communication and are also used by employees in the workplace. The following provides an overview of how the private use of social networks in the workplace can be regulated and what control and sanction options are available to the employer.

Social networks

Social networks are communities within the internet. They promote communication and interaction between users through the possibility of creating an individual profile and networking with other users. Social networks can be used to actively participate in the creation and distribution of news and content and to use chat programs.

Possibilities for regulating private use at the workplace 

If social networks are used by employees in the workplace, a distinction must be made with regard to the regulatory options as to whether the employees are allowed to use their own devices (e.g. smartphone) or the employer's equipment (e.g. internet connection, computer, mobile phone).

Use of social networks through the employer's resources

The employer is fundamentally free to regulate the use of social networks using his operating resources. Such a regulation can take place through instructions, in the employment contract, or through an enforceable company agreement.

The regulation can either completely prohibit, allow completely, or allow restricted use of social networks by the employer's resources. A restriction can be made, for example, by a specified time frame, a specified data volume or with regard to the networks that can be accessed. If private use of social networks is permitted or restricted during working hours, the employee may make use of this option to the agreed extent.

Tip!

It is recommended that the private use of social media during working hours is restricted or prohibited entirely.

If the private use of social networks in the workplace is not regulated, the employee is generally entitled to restricted private use. However, doing so may the proper performance of employment duties are not impaired. Use is only permitted in a proportionate and moderate manner; in particular, attention must be paid to any impairment of the employer's resources, e.g. by causing security risks.

Use by your own devices

If the employee uses social media through private devices (e.g. smartphone, private tablet), this private use must not impair work performance. A complete ban on private use of social networks with private devices during working hours is not possible.

Control powers of the employer

The employer is entitled to monitor compliance with regulatory requirements and instructions by the employee.

However, both the employee's privacy protection and the provisions of the Data Protection Act 2000 (DSG) must be observed.

From the personal rights of the employee it follows that these can only be interfered with if the interference is proportionate and the interests of the employer prevail. A control by the employer is therefore only permitted if it pursues objective and legitimate control objectives and the control is proportionate.

A legitimate control goal is, for example, to monitor compliance with a ban on the use of social networks.

If the control relates to personal data, i.e. information about data subjects whose identity can be determined or determined, the employee's interests in confidentiality must be weighed against the employer's interests in information and control.

Data resulting from the use of the Internet or the use of social media by the employee are in any case personal data to which the protection of confidentiality applies.

The employees concerned must be informed about the controls. A works agreement must be concluded in companies with a works council on control measures that affect human dignity. In companies without a works council, the written consent of the individual employees must be obtained. It should be noted that comprehensive controls that, for example, use special software to completely record Internet access and check the content, violate human dignity. Such control measures are therefore not permitted in any case, even if there is a corresponding works agreement or individual agreement with the employees.

Sanction options

The employer can impose sanctions in the event of violations of the regulations regarding the private use of social media. First and foremost, in such a case, the employer will demand behavior in accordance with the contract and warn the employee. The so-called simple warning is a warning that has a warning function, but is not to be understood as a sanction for the behavior set.

This must be distinguished from disciplinary measures that are intended to sanction the misconduct committed by the employee and lead to a legally permissible disadvantage for the employee. Disciplinary measures are as fines or withdrawal of voluntary services. It should be noted, however, that the imposition of disciplinary measures in companies with a works council requires the consent of the works council or a body set up with its consent.

In more serious cases, the dismissal of the employee can also be issued as a final consequence. The persistent neglect of employee obligations is a particular reason for dismissal. For a dismissal for this reason, however, it is necessary that the employee has already been warned about a breach of duty and the breach of duty is serious. The reason for dismissal can also be given regardless of whether the employee uses the employer's resources or whether he uses his own equipment. Essentially, what matters is that the employee neglects his or her duty to work by using social media.

Example:
It was contractually agreed between employer and employee that the use of social media via the employer's internet connection is permitted for a maximum of 15 minutes per day. However, the worker spends about 1.5 hours on social media every day. The employer therefore gives the employee a written warning. If the employee's behavior does not improve, the employer can issue a further warning to dismiss the employee.

Tip!

It is recommended to issue a written warning to the employee in the event of violations of the regulations on private use of social media so that the warning can be proven in the event of legal proceedings.

Other reasons for dismissal can also be used - depending on the circumstances. If, for example, an employee makes defamatory or insulting statements about the employer on social media, there may also be grounds for dismissal in this case, regardless of whether the statements on social media were made during or outside of working hours. A prior warning is not required in this case.

Tip!

Whether a cause for dismissal exists, can only be assessed on an individual basis. You should therefore inquire immediately with your Chamber of Commerce before issuing a dismissal.