07 October 2011 #Employment
The use of social media can be a minefield, creating many issues for employers which are increasingly being seen in Tribunals. Employers who ignore the rise of this medium do so at their peril.
Love it or loathe it, the social media phenomenon is here to stay. Many organisations embrace this medium and positively encourage staff to use it for networking and marketing. Others remain sceptical about this brave new world and have banned its use in the workplace. Whatever your company’s stance, you can be sure that a good number of your employees regularly blog, tweet and use Facebook in their spare time. Social media is increasingly blurring the boundaries between work and play.
Here we take a look at some of the main risk areas in the use of social media by both employers and their staff.
Increasing numbers of employers are turning to the likes of Facebook to vet potential candidates for jobs. In a survey conducted by Microsoft in 2009, 41% of UK recruiters said they had rejected candidates based on their online reputations. Of course, most employers are unlikely to admit to a rejected candidate that they had been snooped on in this way. However, is this acceptable from a legal or ethical standpoint?
If taking a sneaky peak at online profiles becomes a matter of standard recruitment practice, then judgments based on such information could fall foul of discrimination laws. Arguably it will also encroach on an individual’s expectations of a right to a private life. Moreover, using online profiles to make recruitment decisions is likely to amount to “processing” data under the Data Protection Act 1998. The Employment Practices Data Protection Code means candidates should be given the opportunity to comment on the accuracy of information about them and so be told about employer’s vetting exercises, including where this involves a general dig around Facebook.
The seniority of the position you are hiring for is likely to be relevant to any recruitment decision. For example, an online profile linking a candidate for CEO to extreme political views or sexually explicit behaviour is likely to be more significant than the same online profile of a candidate for a junior admin position.
Either way, making judgments based on potentially inaccurate online personalities could land you in a legal quagmire. This was seen recently when a US employer, the University of Kentucky, turned down an apparently exemplary candidate following a social media check. The university was forced to make a $125,000 out-of-court settlement to a UK-born scientist who, despite being the best fit for a director-level job, was turned down after being found to have expressed creationist views online, which were felt to conflict with the role he had applied for. If a firm offer is made and then withdrawn following online vetting, this carries with it the potential risks of a claim for breach of contract and damages.
Just as social media can be a great way for organisations to raise their profile and promote their brand, equally, one misplaced comment could create negative publicity. However, dismissing employees for criticising your organisation can be tricky, especially where damage to reputation is speculative and difficult to substantiate.
In Preece v JD Wetherspoons plc (2011) the dismissal of a pub manager for gross misconduct, following inappropriate comments she made on Facebook about some customers who had verbally abused her, was upheld by the employment tribunal. The conversation on Facebook had taken place whilst Ms Preece was at work and was in breach of the company`s e-mail and internet policy. Ms Preece’s privacy settings meant that a wide audience was able to view her Facebook page, including the customers in question, risking the reputation of her employer.
However, as the case of Whitham v Club 24 Ltd t/a Ventura (2011) demonstrates, derogatory comments about work by an employee will not always justify dismissal. When Mrs Whitham posted comments on Facebook bemoaning colleagues after a bad day at work, she was dismissed for putting the company’s reputation at risk. However, the Tribunal found that Mrs Whitham’s comments were relatively mild, were not about a major client and did not involve any confidential information. No individuals were identified in her comments and her privacy settings meant that only her friends could see her Facebook page. Moreover, it was highly unlikely that such mild comments by a junior employee could jeopardise the commercial relationship between her company and their major client. Consequently, she had been unfairly dismissed.
Before dismissing an employee in these circumstances, the employer should have clear evidence that derogatory remarks are likely to have a serious impact on the company’s relationship with customers or other third parties. In light of the above cases, it seems that the potential readership will be relevant to the seriousness with which the employer may treat the actions of the employee.
An alternative justification for dismissal could include a breach by the employee of the implied duty of mutual trust and confidence. Similar principles to cases involving employees’ inappropriate behaviour or misconduct away from work are likely to apply here (see below).
Of course, there is always the risk that an employer’s handling of this sort of scenario could do just as much damage to the company’s reputation. The recent publicity surrounding the dismissal by Argos of David Rowat, a 56 year old father of three suffering from cancer, following his moans about work on Facebook, was perhaps more damaging to the company than the comments he had actually posted – especially as Mr Rowat didn’t even identify Argos in his posts!
Inappropriate private behaviour
Many cases involve employees’ use of social media outside of the workplace in their spare time on private computers. However, just because the actions take place at home does not mean that employers are obliged to disregard unacceptable behaviour, particularly where there is a clear link to the employer. Whether it is then fair to discipline or dismiss depends on many factors, including the nature of the employee`s job and the terms of any applicable policy.
In Gosden v Lifeline Project Ltd (2011) the Tribunal found that the employer was entitled to dismiss a drugs and welfare worker for gross misconduct, for sending a racist and sexist email from his home computer, to a colleague’s personal computer, when that email was subsequently forwarded on to other employees at their work email addresses.
Mr Gosden argued that the email that he had sent was a private matter and therefore his dismissal was unfair. The Tribunal disagreed. The email clearly stated that it should be passed on and so he should reasonably have expected it to have been forwarded. The Tribunal concluded that a reasonable employer would be entitled to conclude that Mr Gosden had committed an act of gross misconduct that could damage the company`s reputation or integrity. Mr Gosden’s role and the extent to which holding sexist and racist views were incompatible with his role were relevant to the Tribunal’s decision in this case. However, it may have been harder to justify the dismissal of a filing clerk or catering assistant.
As this case is only a tribunal decision and not binding on other tribunals, further cases are needed before the boundaries between such private actions and the employment relationship are more clearly defined.
Loss of productivity
Technology is now such that many employers, not to mention customers, expect employees to have constant access to emails and mobile phones (e.g. whilst at home or travelling to and from work). Likewise this means employees can always be in touch with social media via their work laptops or Smart phones. Allowing employees constant access to social media in this way carries with it the risk of loss of productivity.
Employers need to be clear about the parameters and set this out in a clear policy to avoid confusion. In Grant & Ross v Mitie Property Services UK Ltd (unreported) two sisters won their claim for unfair dismissal for excessive internet usage as the employer’s policy which permitted access outside “core working times”, was too vague.
Cyber-bullying is something we most associate with school children. However, it can just as easily apply where staff use social networking sites to post offensive or threatening comments about colleagues. Recently, the BBC reported the case of a police officer who was dismissed for posting “deeply offensive” comments about other employees on his Facebook account.
Where such bullying involves an element of discrimination, the employer can be held “vicariously” liable for the perpetrator’s behaviour. Tribunals are not always sympathetic to the employer’s defence that the employee committing the discrimination was not physically at work or acting under instruction from the employer at the time.
Any allegations of bullying in this way should be taken seriously, and investigated and dealt with as you would any other case of bullying. Importantly, bullying and disciplinary policies should be bolstered so that they cover this possible scenario.
So, in meeting the challenges of social media, what should employers do?
First and foremost, you should put in place a social media policy, which includes some of the following:
ACAS has published guidance on its website dealing with the many issues employers face with the proliferation of social media. Full members of Employment Buddy can download our Social Media Policy here.
Furthermore, Clarkslegal is hosting an employment law workshop on Social Media, as part of its winter programme of events in London, Reading and Cardiff. For further information, please click here.