social media and the workplace · social media and the workplace harassment – equality act 2010...

Copyright Faculty Law Limited 2012

Social Media and the Workplace:

aka

“Fifty Ways to Leave your

Employment”

Robert Foulke

Director

Faculty Employment Solutions

Social Media and the Workplace

“Social Media is likely to be one of the biggest workplace issues in 2012”

Ed Sweeney, Chair of ACAS, December 2011



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?)



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)



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



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



• 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



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)



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)



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)



‘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 email or by person

• Teggart –v- Teletech UK



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



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)



Human Rights

• Article 8 – Reasonable Expectation of Privacy


• Crisp –v- Apple Retail (ET/11)

• Gosden –v- Lifeline Project

• Pay –v- United Kingdom (2009) ?



Human Rights

• Article 10 – Right to Freedom of Expression


• Preece –v- JD Wetherspoons (ET/10)

• Crisp –v- Apple Retail



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 email addresses not to be used on social media sites – Make clear the nature, extent and reasons for monitoring – Review policy regularly, and update workforce



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)



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)



Closing Thoughts:

1. Rustamova –v- the Governors of Calder High School (ET/2009)

2. The Gratuitous Marketing Bit


Robert Foulke

Director

Faculty Employment Solutions

Tel: 07762-166794

Email: [email protected]

Website: www.facultylaw.co.uk


mailto:[email protected]

http://www.facultylaw.co.uk/

social media and the workplace · social media and the workplace harassment – equality act 2010...

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