Social NetworkingA New HR Challenge

Paul Bennett, SolicitorNovember 2009

• Boutique Employment & Business Support Law Firm;• National and International Client base;• Started in April 2009;• Smallest Client 1 Employee; Largest 700 employees;• Fixed Fees for 90% work;• Government Panel and Pilot Scheme members (only

firm in Shropshire);• EmployersHelpOnline.co.uk – Backed by largest UK

Legal Insurer;

• Focus on Employment and related areas such a contracts, commercial law etc;

• Also act for range of media clients hence linked expertise to be explored tonight;

• Me – Act for law firms in business, partnership and employment law;

• Train other lawyers at national level;• Married to a HR professional so can see things

from a HR perspective......(I hope!)

Social Networking?

• Peer to Peer – user to user;• Popular examples include Linked

In/Facebook/Twitter/Bebo;• Everyone can publish their thoughts and

many are tedious – Lily Allen on cricket anyone? Or Stephen Fry for example “And then - I've recorded Dr Who. Raaaaaaaa.”

Internet Policy?

• Some sites are being used to promote businesses hence employers can not ban the use completely –

• BennettsLegal is on Twitter;• Employment Agencies on Twitter and

Linked In;• Clients are using it to send messages –

hence total ban not right for all businesses and difficult to police.

So What’s the Problem?

Case 1 Study• FACEBOOK comments

from an IFA about boss;• “He’s a dickhead. Knows

nothing about finance. I hate my job!”;

• Reported to Employer by fellow employee– what do you do?

Issues• Privacy – Friends only

group accessed by “mutual friend” and cut and pasted to boss;

• Defaming boss and business – do they sue for compensation?

• Written in own time and not naming boss and business so is it really relevant?

Problems?

Case Study 2• Sales Person off work

apparently as “sick”;• Called in with the flu;• On Twitter – “massive

hangover. Feel like S**T – can’t work”

Issues• Privacy – Is this crossing the

line into private life;• Googled – hence fishing by

HR manager – because he always has the same day off;

• Did it breach contract to allow termination and fair dismissal? Yes. Evidence for Tribunal and issue – who wrote it and when/why? Accuracy.

Problems

Case Study 3• Manager – online saying

employee is a “skiver” and “lazy” whilst on official firm site and blog;

• Employee off work sick and told of comments and raised grievance;

• Wanted manager disciplined;

Issues• Clearly workplace based;• Disciplinary needed

against senior member of staff who should be setting an example;

• Duty of care to employee;• Defamation of employee

– he has right to sue company.

Practical Steps

1. Document and record the evidence – it is no good saying I saw this and deleted it;

2. Investigate the source;3. Discipline – best practice remains Letter

– investigation - meeting – decision – appeal right;

4. Think proactively – social networking policy, training – these under pin discrimination and harassment issues;

Practical Steps 2

5. Random review from time to time – blogs, known trouble makers sites, to managers;

6. At induction include the policy and get it signed;

7. Annual review needed because use of technology is business is changing daily;

8. Policies must reflect the general practice;

9. Have a solicitor on speed dial……!

The Legal Bit

WHAT I S DEFAMATION?• Defamation is committed by the publication to a third

person of material containing an untrue statement or untrue comment affecting the reputation of another.

• The claimant must prove that the words/picture complained of convey a defamatory meaning.

• Defamatory material lowers a person's reputation in the minds of reasonable people or cuts the claimant off from society or exposes the claimant to hatred, contempt or ridicule.

• Words which merely injure feelings are not actionable. Defamatory material can be written, spoken or broadcast. It can also take the form of pictorial or graphical representation.

Defamation

• Can be of a company, person or organisation;

• Remedies injunction and compensation;• Compromise agreement breach can lead

to recovery of pay off;• Legal costs can be high if Court occurs

hence letter before action from Solicitor prevents a repeat in 90 % of cases and gets comments removed.

Privacy

• Human Rights Act 1998 – Article 8 Protects the right to a private and family life hence is used by employees and their more savvy lawyers to argue against dismissal if written in personal time;

Discipline

• The best practice guidance applies obviously;• Use defamation as a tool to remove or when

negotiating compromise agreements (if appropriate);

• Remember the golden rule and make sure managers document everything they do – everything and why;

• Remember also legal privilege only applies to external legal advice so HR internal and external are not covered – beware of what you say.....

Any questions?

Hot Topic’s

1. Employees are starting to get restless again – grievances are up over the last month;

2. Discrimination is flavour of the month in my practice because clients and their managers have lost focus and discrimination is occurring age, sex, pregnancy and disability and sick pay in particular are problem areas;

3. Tax Rule changes means compromising claims needs careful review – get it wrong fines have increased by 100% (Finance Act 2008).

Despite all that’s been said...

• Twitter.com / BennettsLegal• EmployersHelpOnline – Linked In Group• www.bennettslegal.co.uk• www.EmployersHelpOnline.co.uk• LegalTraining.tv

Thank you for listening..........