Social Media in the Workplace Jane Smith & Rebecca - - PowerPoint PPT Presentation

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Alexander Lloyd Social Media in the Workplace

Jane Smith & Rebecca Thornley-Gibson Employment team, asb law LLP 22 June 2012

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What is it? - Types of social media

• Blog
• Twitter
• Social and business networking sites

– Facebook, LinkedIn, MySpace

• Digital media sharing sites
• WIKI
• MMPORG
• Astroturfing

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Some statistics…

• Does your business use social networking for business

purposes?

75% - Yes 24% - No

• Are all, some or no employees permitted to access social

networking sites for non-business use?

48% - All employees, 25% - No employees 27% - Some employees

• Do you actively block access to social networking sites?

70% - No 30% - Yes

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Some statistics…

• Do you have social networking policies?

55% - Yes 45% - No

• Do your policies cover social networking inside and outside
• f work?

16.5% - Just at work 44% - At work and outside of work 39.5% - No policy

• Has your business had to take disciplinary action over

misuse of social networking?

31% - Yes 69% - No

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Should employers allow use at work?

Pros

• Treat your staff like adults
• May be needed if creative / IT based sector / role dependent
• Expectations from third parties
• Guidelines can be established

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Should employers allow use at work?

Cons

• Loss of productivity
• Discrimination / harassment from postings
• Confidential information breaches
• Loss of reputation/defamation
• Privacy and data protection headaches
• Illegal content
• Excessive restrictions = non compliance / undermine morale?

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Employer options on use

• Outright ban
• Fair Use Policy
• Block sites
• Smartphone use
• Tolerance on use outside normal working hours
• Time limits
• Total freedom save for offensive/unsafe sites
• Partial permissions (LinkedIn ok, Facebook banned)
• Business use permitted but private use not allowed

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What does the law say?

The legal framework:

• Data Protection Act 1998 – employee friendly
• Right to Privacy – Human Rights Act 1998 – employee

friendly

• Regulatory of Investigatory Powers Act 2000 (RIPA) –

employer friendly

• Lawful Business Practice Regulations 2000 – employer

friendly

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Checklist for use of social media

 Have a carefully worded social media policy – applicable to

your business

 Treat cyber-conduct in the same way as normal conduct  Ensure employees know the consequences  Consider social media training where heavily used within

the business and update regularly

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Checklist cont…

 Amend bullying/harassment policies to cover cyber conduct  Ensure LinkedIn profiles are consistent with your brand  Ensure employees know social media may be monitored  Ensure employees know what they do out of work also has

an impact on the business

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Checklist cont…

 Make it clear that employees should have no expectation of

privacy when they use your Internet/Social Media and Company SmartPhones

 Be very wary about using social media to sift candidates

during the recruitment process

 Make sure your policy details what will happen when

someone leaves – ie take down the employee’s LinkedIn site?

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The Cases so far…….

• Conduct outside the workplace
• Cyber bullying, harassment / discrimination
• Facebook postings
• LinkedIn

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Pay v UK (2009)

• Pay was a probation officer working with sex offenders
• Employer discovered he was involved in various S&M

activities and photos of various acts involving him

• Probation Service considered that it had a responsibility to

the public to maintain confidence in the integrity of probation officers and public knowledge of Pay’s activities would damage its reputation

• It was held by the court that interference with his right to

privacy and freedom of expression was justified to protect reputation of the employer.

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Gosden v Lifeline Project 2010

• Lifeline is a charity assigning employees to work with drug

users in prison and HM Prison Service was one of its biggest clients

• Mr Gosden was employed by Lifeline and from his home

PC and outside working hours he sent a racist and sexist email headed “It is your duty to pass this on” to the home PC of an employee of HMPS. The HMPS employee then forwarded that to his fellow employee’s HMPS email account

• Gosden was dismissed for gross misconduct

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Gosden v Lifeline Project 2010

• Employer claimed a breach of the equal opportunities

policy and damage to its reputation

• Dismissal fair on the basis that Gosden had intended for

the email to be sent on and therefore he lost control over who the recipient forwarded it to.

• No reasonable expectation of privacy for Gosden.
• Had intention been to send only from home PC to the

recipient’s home PC then privacy may have been engaged

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Crisp v Apple 2011

• Apple’s induction training covered brand image and

commercial reputation; how employees should present themselves in public, in online social networks and on blogs

• The induction also stated that employees’ outside activities

could affect Apple’s business interests and were therefore covered by Apple policies and guidelines

• Apple stated that employees were not to display

commentary about Apple’s products, services or initiatives

• n personal website or personal social media
• Warning about disciplinary consequences was clear

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Crisp v Apple 2011

• “Ask before you post”
• Specific online business conduct course dealt with how

employees should use blogs to comment on Apple’s products and made it clear how outside online activities could affect job performance

• Crisp didn’t attend the above course!

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Crisp v Apple

• Apple were alerted to 4 Facebook posts by Crisp
• Alerts made by Crisp’s Facebook “friend” and colleague
• Posts referred to:
• His “work” in expletive terms
• Technical problems with his iPhone
• An Apple app not working (expletives used)
• Ridiculing a tagline used by Apple to promote Beatles music being

available on iTunes the following day

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Crisp v Apple 2011

• At the various disciplinary meetings Crisp:
• Provided limited or no comment
• Maintained his Facebook was private as only his “friends” had access
• His posts did not expressly identify him as an Apple employee
• He had removed posts once alerted to an issue
• Inconsistent treatment by Apple of other employees
• He was dismissed for gross misconduct for bringing the

company into disrepute

• Other employees were investigated and they cooperated

with process, apologised and received FWWs

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Crisp v Apple 2011

• Tribunal held that Apple’s belief in Crisp’s misconduct was

genuine; it had reasonable grounds for holding that belief in that there were unchallenged Facebook posts; Apple complied with ACAS Code and fairness requirements and the investigation had gone as far as it could as Crisp’s no comments answers meant there was nothing further to investigate.

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Crisp v Apple 2011

The dismissal sanction was reasonable because Crisp was aware of the reputational damage, fully aware of the brand image issues, had given no mitigating circumstances and there was no inconsistent treatment as a previous employee had also been dismissed for a similar matter.

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Crisp v Apple 2011

• Privacy rights were discussed but Crisp did not have

reasonable expectation of privacy over his posts because:

• Online comments made by one person can easily be forwarded to
• thers and control therefore lost regardless of Facebook page being

set to “private” limiting initial access to “friends”

• An Apple employee working with technology should have known the

above!

• Apple’s interference with his privacy rights was justified and

proportionate to protect Apple’s own rights in respect of reputation.

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Preece v JD Wetherspoons 2011

• Preece was a shift manager
• Company handbook referred to acts committed outside

work that could have adverse effect on suitability for job or which could bring the company into disrepute

• Internet and email policy stopped employees contributing to

blogs, Facebook where content could be seen to affect reputation of the company, its staff or customers

• Wetherspoons had a support line for staff abused by

customers

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Preece v Wetherspoons 2011

• Preece was subjected to a shocking torrent of verbal abuse

and physical threats by 2 customers and then 3 abusive calls by the customers’ daughter

• Preece, whilst on shift, started a Facebook discussion and

identified the 2 customers by name

• Entries were light hearted and spanned a period of time
• Daughter complained and Preece dismissed
• Dismissal justified as Preece had no expectation of privacy

regarding posts in the public domain and freedom of expression damaged company’s reputation

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Whitham v Ventura 2011

• Whitham was a team leader and posted on Facebook mild

criticisms of working conditions and colleagues

• The Facebook page was visible only to friends but they

included colleagues

• Dismissed for potential damage with company’s main client
• No demotion sanction in disciplinary policy and this would

have been a preference

• Mitigating factors: exemplary record, personal problems,

client not named, immediate written apology

• Dismissal was outside the band of reasonable responses

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Stephens v Halfords 2011

• Stephens was a deputy store manager
• He attended a consultation meeting regarding workplace

reorganisation and was told information he was given was confidential

• He then put up a Facebook page “Halfords workers against

working 3 out of 4 weekends”

• He took down the page when he realised it was against

company policy on social networking and that employees who actively encouraged dissent would be disciplined

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Stephens v Halfords 2011

• At the disciplinary hearing he apologised and said his

judgment was clouded due to stress and would not do it again

• He was dismissed for posting confidential information
• The tribunal held that there was nothing to indicate to

Halfords that his misconduct rendered the continuing employment relationship untenable and therefore his dismissal was unfair.

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Pennwell Publishing v Ornstein

• A Microsoft Outlook contact list which is part of the

employer’s email system and backed up by the employer’s servers will belong to the employer and not the employee

• Therefore that contact list cannot be copied or removed for

use outside work or for post termination of employment

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Hays v Ions 2008

• Ions was a management consultant for Hays and left to set

up a competing business

• Allegations that Ions had uploaded candidate and client

details from Hay’s confidential database to his own LinkedIn account and these details were being used in competing business

• Pre action disclosure sought of all emails and comms sent

to or received by Ions’ LinkedIn account from the Hays network together with documents evidencing use of the information

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Questions?

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