Social Media and the Workplace: aka Fifty Ways to Leave your Employment. Robert Foulke Director Faculty Employment Solutions

Transcription

1 Social Media and the Workplace: aka Fifty Ways to Leave your Employment Robert Foulke Director Faculty Employment Solutions

2 Social Media is likely to be one of the biggest workplace issues in 2012 Ed Sweeney, Chair of ACAS, December 2011

3 Different Forms of Social Media ( Web 2.0 and social networking sites) Facebook (circa 1 billion) Twitter (140 million active users) LinkedIn YouTube MySpace (Smart Phones the devil s work?)

4 Positives: A useful marketing tool, encouraging employees to keep blogs and use professional networking sites for work purposes Negatives: Blurs the boundaries between the public and the private (e.g. Mr Chambers and the Communications Act 2003)

5 Misconduct and Dismissal (typically) two categories: Inappropriate behaviour by an employee that is exposed through social media Derogatory comments about the employee s workplace posted on a social networking site

6 Where work-related conduct comes to light via a social networking site, employers may legitimately take action against the employee Gill v- SAS Ground Services UK (ET/2009) Even where misconduct not directly work-related, may be entitled to take the view that the employee s position has become untenable (e.g. where damage to employer s reputation/loss of trust and confidence) ACAS advice? Carefully consider the likely impact of the employee s business before taking any disciplinary action

7 Factors likely to be of relevance to the fairness of any dismissal: The nature of the employee s job The employee s seniority within the company The seriousness of the alleged misconduct The nature of the employee s organisation The terms of the employer s social media policy The disclosure of any confidential information The risk of reputational damage to the employer The likely impact on the employee s job Any mitigating factors e.g. service record/cooperation/contrition

8 Seriousness of Alleged Misconduct: The measures taken against an employee must be proportionate to the seriousness of the offence Young v- Argos (ET/2011) Teggart v- TeleTech UK (IT/2011) Dixon v- GB Eye (ET/10)

9 Disclosure of Confidential Information: Employees owe implied contractual duties of fidelity and confidentiality to their employer, and any information that they post on a public forum about the employer s business has potential to give rise to a breach of these duties Zaver v- Dorchester Hotel (ET/06)

10 Damage to Employer s Reputation: Any perceived risk to the employer s reputation must be real rather than merely fanciful Whitham v- Club 24 t/a Ventura (ET/10) Taylor v- Somerfield Stores (ET/07) Gosden v- Lifetime Project (ET/09)

11 Cyber-bullying Make clear in bullying & harassment policies that online harassment will be treated as a disciplinary issue in the same way as harassment by or by person Teggart v- Teletech UK

12 Harassment Equality Act 2010 S.26 EqA unwanted conduct related to a protected characteristic that has the purpose or effect of violating an individual s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her Covers age, disability, gender reassignment, race, religion or belief, sex and sexual orientation Employer liable for acts of harassment carried out by employees in the course of their employment S.109EqA defence i.e. taking all reasonable acts to prevent employees from carrying out such acts

13 Harassment Equality Act 2010 Employer liable for acts of harassment carried out by employees in the course of their employment Jones v- Tower Boot (1997) S.109EqA defence i.e. taking all reasonable acts to prevent employees from carrying out such acts Otomewo v- Carphone Warehouse (ET/11)

14 Human Rights Article 8 Reasonable Expectation of Privacy Teggart v- Teletech UK Crisp v- Apple Retail (ET/11) Gosden v- Lifeline Project Pay v- United Kingdom (2009)?

15 Human Rights Article 10 Right to Freedom of Expression Teggart v- Teletech UK Preece v- JD Wetherspoons (ET/10) Crisp v- Apple Retail

16 Social Media Policies ACAS Recommendation No.1 all employers should have a policy on internet/social media use (Workplaces and Social Networking: The Implications for Employment Relations ) Policy Contents (If personal internet use allowed) the extent of such permission and restrictions on time Potential consequences of defaming the employer etc make clear that offensive/defamatory/discriminatory comments on social networks or blogs will lead to disciplinary action, and may lead to dismissal State work addresses not to be used on social media sites Make clear the nature, extent and reasons for monitoring Review policy regularly, and update workforce

17 Work-related social media use Prudent to stress to employees that must not divulge confidential information / act in a way that breaches the copyright or intellectual property of others Flexman v- BG Group (ET/11 decision pending) Communicating policy to employees Crisp v- Apple Retail Applying policy consistently Walters v- Asda Stores (ET/08)

18 Investigating Alleged Misuse Reasonable Investigation Whitham v- Club 24 t/a Ventura Stephens v Halford (ET/10) Preece v- JD Wetherspoons (ET/10) What if Employee Denies Involvement? Benning v- British Airways (ET/10)

19 Closing Thoughts: 1. Rustamova v- the Governors of Calder High School (ET/2009) 2. The Gratuitous Marketing Bit

20 Robert Foulke Director Faculty Employment Solutions Tel: Website: