Employment Law, HowarthsLaw, HR, Uncategorized

Using Open Source Material in Employment Related Investigations

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I am often asked whether open source material can be used as part of work based investigations in the private sector.
The answer is why not?
The watchword for all investigations in the workplace is reasonableness.
Is it reasonable to use Facebook as your evidence when someone is off sick but posting pictures of themselves involved in alcohol based shenanigans from a night club in Lloret?
I should say so.
But seriously, use of open source data is used more and more by our police forces and intelligence agencies. Lots of people are naïve in what they post on-line. In my old role, we used social media as great evidence to prove associations between people, connections between individuals and property and even to prove that people were in a particular place at a particular time.
The question is always raised, what about Article 8 of the European Court of Human Rights, the right to respect for private and family life?
Public bodies such as our police forces and government agencies have to comply with the Regulation of Investigatory Powers Act 2000 (RIPA). This legislation ensures that any breaches of a person’s Human Rights Under Article 8 are lawful, necessary and proportionate.
Private entities are not classed as public bodies and therefore do not have to comply with RIPA.
Saying that, there is still a requirement to be reasonable. Persistent and ongoing monitoring of a person’s social media posts with no legitimate reason or objective in mind is unreasonable.
So, in conclusion, if a post on social media is good evidence to prove or disprove an allegation under investigation in the work place, feel free to use it.
A top tip is to take a screenshot early on in case it is ultimately deleted.
Don’t forget, be aware of what you are putting out on social media yourself!
By Bob Cherry, Head of Investigations

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