Social media in the workplace - 27 November 2014

Social Media in the Workplace

Armada House, Bristol – 27 November 2014

Programme

9.30 - Martin Augustus 10.30 - Rupert Scrase 11.30 - Close

Scrase Employment Solicitors

Training from experience

– in house training programmes

Practical, straightforward advice

– Fixed rate for projects, eg checking contracts or updating handbooks

– Hourly rate, or

– Employment Law Advice Agreement (ELAA)

ELAA

A fixed annual fee covers you for:

• Employment law advice on the phone, email or in person

• Preparation and representation in the Employment Tribunal

• Drafting settlement agreements

• Checking of employment related documentation

What is social media?

“By giving people the power to share, we’re making the world more transparent” – Mark Zuckerberg

What is social media?

Websites and increasingly smart phone and tablet applications that

enable users to share content and to interact

with each other

• Friends Reunited

• My Space

• Facebook

• Twitter

• Linkedin

• Pinterest

• YouTube

What is social media?

• Some applications are geared towards personal, fun interactions – Facebook

• Some are business orientated - Linkedin

• Others manage to span both worlds – Twitter

• What links these applications is the ability for users to post comments, pictures, video and other content in a forum that is largely or wholly public

• The boundary between professional and private lives has become increasingly blurred

What is social media?

• Interactions are informal and unregulated

• Posts are broadcast instantaneously

• They reach a worldwide audience

• Little control over what other people post about you

Growth

• Twitter, Facebook and LinkedIn have all seen exponential growth since about 2008/ 2009.

• In 2006 Facebook had about 3.5 million users. In 2014 it claims to have about 1.3 billion users

• Twitter has about 250 million users

Social media at work

• Inappropriate posts

• Distraction/ productivity

• Discrimination

• Use in recruitment

• Defamation and other liabilities

• Human Rights/ Data protection

• Who owns social media accounts?

• Social media policy

Inappropriate posts

“In real life, it’s good netiquette to limit yourself to a two drink maximum when social networking” – David Chiles

Inappropriate posts

• Can an employer dismiss an employee for loss of reputation where an employee posts inappropriate material on a social networking site that relates to the employer?

• This will depend on the content, whether the post was public or limited to ‘friends’ and whether the employee’s connection to the employer could be identified

• Is the response proportionate?

Work related posts

• Preece v JD Wetherspoons plc (ET 2104806/10)

– A pub employee posted negative comments on Facebook about two of the pub’s customers

– This followed a incident where one of her colleagues was verbally abused by one of the customers

– Her Facebook profile could be viewed by anyone; one of the customers saw the comment and complained to Wetherspoons

– An ET found that the comments had brought her employer into disrepute and that the dismissal was within the band of reasonable responses

Work related posts

• Preece v JD Wetherspoons plc (ET 2104806/10)

– The employer had a clear policy which warned of dismissal where an online post “[was] found to lower the reputation of the organisation, staff or customers and/or contravene the company’s equal opportunity policy”

Work related posts

• Whitham v Club 24

– An employee made comments on Facebook which included “I think I work in a nursery and I don’t mean working with plants”

– The comments could only be seen by friends but this circle did include some work colleagues

– An ET found that dismissal was outside of the band of reasonable responses. The comments were relatively trivial and there was no evidence that they had been seen by the employer’s customers

Private posts?

• Can an employer dismiss an employee where an employee posts inappropriate “private” material on a social networking site?

• Again, this will depend on the content, whether the employee’s connection to the employer could be identified and to an extent, the kind of work that the employee is employed to do

Private posts?

• An employee could express views which are perceived as offensive, unacceptable or in breach of the organisation’s values or policies

– Discriminatory view

– Extreme political or religious views

– Lewd or sexual comments

Private posts

• Gosden v Lifeline Project

– Mr Gosden was employed by an organisation which supported vulnerable people

– Outside of work, he forwarded a sexist and racist email to a friend who worked for HM Prison Service (one of Lifeline’s clients)

– The email eventually made it in to the Prison service’s computer network. They complained and Mr Gosden was dismissed

– In forwarding on the email he created the impression that he espoused the views contained within the email

Private posts

• Taylor v Somerfield (unreported)

– Two supermarket employees posted a video on YouTube which showed them hitting each other with plastic bags

– The employees were dismissed for bringing the company into disrepute

– An Employment Tribunal was not persuaded that there were sufficient grounds for dismissal as the video only received 8 hits

Private posts

• A food inspector in Scotland was awarded around £30,000 by an Employment Tribunal following his dismissal for ‘liking’ a Facebook post

• The post related to two sacked abattoir workers, one of whom had, it appeared from the post, threatened violence against his former boss

Private posts

• It was reported that the The Food Standards Agency claimed that the posts amounted to a breach of trust and were unprofessional

• An Employment Tribunal disagreed finding that the Claimant had mistakenly believed that his comments would not be made public

• Importantly, the ET criticised the agency as its social media policy focused on work and not private posts

Critical posts

Critical posts

• Weeks v Everything Everywhere (EE)

– Mr Weeks described his place of work as like “Dante’s inferno”

– EE had a social media policy which made it clear that it covered postings made in the employee’s own time and included a requirement not to criticise EE

– His dismissal for gross misconduct was upheld by an Employment Tribunal

Mistakes

New Statesman

Tweet sent to 26,000 followers

Instead of just one

Distraction/ productivity

“Distraction from distraction by distraction, filled with fancies and empty of meaning” – T.S. Elliot

Distraction/ productivity

• Loss of productivity by employees

• Risk of excessive use of the organisation’s IT systems/ risk of virus and other attack

• Preventing employees from using the organisation's IT systems does not prevent employees from using their own devices

• Most organisations will want to monitor social media postings to some extent

Use in disciplinary proceedings

• An employee who is off sick tweets that they are “enjoying the sunshine while painting the shed”

• An employee’s Facebook post reveals that they are shopping when they should be visiting a client

• Pictures on Facebook reveal aspects of an employee’s private life that they employer disapproves of

Use in disciplinary proceedings

• Guidance from the Information Commissioner and also from ACAS makes it clear that the monitoring of employees’ social media accounts must be justified and proportionate.

• It should also be carried out openly and the employee given the opportunity to comment on the accuracy of on-line posts

• Do not take disciplinary action without checking the accuracy of posts. Avoid knee-jerk reactions

Discrimination

• Protected characteristics; sex, race, age, sexual orientation, religion and belief, disability, pregnancy/ maternity, gender reassignment

• Employers can be vicariously liable for acts of discrimination perpetrated by their employees where the act is “in the course of their employment”

• This has a wide meaning and may include any social media post where there is an association with the employer

Discrimination

• Example

– An employee posts a racist comment on another employee’s Facebook profile in reaction to a disagreement at work

– The act of posting may not have been carried out at work, nor using the employer’s equipment but the act could still create liability for the employer

– The employer’s only defence can be that it took “all reasonable steps to prevent discrimination”

Discrimination

Even if the post does not refer to a protected characteristic – the post could still be bullying

Discrimination

• Reasonable steps defence

– Policies and procedures in place and communicated to employees

– Training on equality which is regularly updated

– Senior management commitment to promoting equality

– Taking action against offenders

Social media in the workplace

Rupert Scrase

Use of social media in recruitment

• A survey by Microsoft in 2009 found that only 15% of candidates thought that information posted on-line could affect their job prospects

• However, 41% of UK recruiters said that they had rejected candidates on the basis of their on-line reputations

• An ACAS survey in 2013 stated that 61% of employers reviewed candidate’s social networking profile as part of the recruitment process

Use of social media in recruitment

• If a candidate is rejected because of information which they have posted on social media, there are risks to the employer

– Discrimination – Information posted on-line may include details of sexual orientation, religious or other beliefs

– Profile pictures may give clues to the candidates • Age

• Race or ethnic origin

• gender

Use of social media in recruitment

• The Information Commissioner’s Employment Practices Data Protection Code contains guidance:

– Inform candidates that social media posts may be reviewed as part of the recruitment process

– Give candidates the opportunity to comment on the accuracy of findings

– Any search relating to the candidates should be proportionate

– The search should be taken late in the process, not as an initial filter

Use of social media in recruitment

• The Code also warns against employers obtaining access to social media accounts by deception

– Making a ‘friend’ request under a false name

– Requiring candidates to provide access to accounts so that they can be reviewed (evidence of this happening in the US)

Use of social media in recruitment

• “Premium” LinkedIn account holders are able to carry out a “reference search”. This allows them to find people who worked at organisations at the same time as potential job candidates

• In California, LinkedIn is facing a class action law suit from four people who were turned down for employment on the basis of information obtained through LinkedIn premium.

• Employers should consider warning about providing “references” through this medium

Defamation and other liability

• Defamation - McAlpine v Bercow

– Sally Bercow’s tweet related to speculation about the identity of a former politician. The tweet was false and found to be seriously defamatory

– Anyone who retweeted the post was also caught by the defamation action (0ver 10,000 Twitter users)

Defamation and other liability

• Criminal Liability - Chambers v DPP

– Prosecution was brought against a twitter user who threatened to blow up Robin Hood Airport

– Prosecution was overturned on appeal

• Unfair trading

– Complex rules govern the extent to which companies can pay others (in particular high profile users) to promote their products on social media without making it clear that the promotion has been sponsored

Defamation and other liability

Human Rights

• Employees may try to argue that disciplinary action/ dismissal for misuse of social media is in breach of the Human Rights Act, particularly if it relates to a “private” posting

• Article 8 – Right to privacy

• Article 10 – Right to freedom of expression

• Direct applicability to public sector employees. For private sector employees, the courts will still have regard to their principles in interpreting legislation

Human Rights

• Teggart v TeleTech UK Limited

– Mr Teggart was dismissed for harassment – he had posted an obscene comment about a female colleague on his Facbook page, while at home. However, the comment mentioned his employer

– He claimed that his right to privacy had been breached

– Northern Ireland ET found that he had abandoned any right to consider his comments “private” by posting them, even though his posts could only be seen by ‘friends’ (these included work colleagues)

Human Rights

• Crisp v Apple Retail Ltd

– Mr Crisp made derogatory comments on Facebook about Apple Inc.

– Apple had in place a policy (which had been well communicated) that stated that making derogatory comments on social media was likely to constitute gross misconduct

– Mr Crisp failed in his argument that his dismissal offended his right to freedom of expression, even though the posts could only be seen by his friends

Data Protection

• The Information Commissioner has made it clear that organisations may become “data controllers” in relation to posts on their social media sites

• They will need to take reasonable steps to ensure the accuracy of personal data that is posted on social networking sites which they operate

• The question of the extent to which employers can or should monitor employee’s social media postings is still largely unanswered

Who owns social media accounts?

Who owns social media accounts?

• Who owns the account? Who owns the list of contacts, who owns the original content?

• Employee’s departure from an organisation can be well publicised on social media – in particular, Linkedin will send an update to all connections when a member posts that they have changed jobs – this makes departures highly visible

• The ownership of followers or connections will depend upon whether they were amassed in the course of the employee’s employment

Who owns social media accounts?

• Employee’s Twitter followers or connections on Linkedin are likely to be a composite of friends, family, work contacts, customers and suppliers

• This list of contacts can be extremely valuable to the employer and to an employee who intends to join a competing business or set up on their own

• On some social networking sites the list of connections is open and in the public domain. On others it may be closed

Who owns social media accounts?

• Hays Specialist Recruitment v Ions

– Mr Ions attempted to ‘link’ to a number of Hays’ customers prior to leaving in order to compete with Hays

– He argued that his contacts were “part of his own knowledge base” and therefore not Hays’ confidential information, and

– That once linked, his other contacts could view the connection therefore putting them in the public domain

– The Court made an order for Mr Ions to disclose the his list of contacts. However, ultimately the case was settled before it reached a full hearing

Who owns social media accounts?

• Policy considerations

– Requiring employees to delete their LinkedIn, Twitter or other social media profile at the end of their employment

– Alternatively, require them to delete contacts which have been made during the period of employment. Customers, Suppliers etc

– Make it a requirement that LinkedIn connects are hidden on the employee’s profile. This way the organisation can argue that they are not in the public domain

Who owns social media accounts?

• Whitmar v Gamage

– Employees resigned in order to compete with Whitmar, taking a Linkedin group listing with them. The group had been set up in the course of their employment

– The court ordered a ‘Springboard’ injunction preventing the employee working for the new employer until they handed over the group to Whitmar

Social media policy

• Organisations should consider putting in place a social media policy

• Ensure that any policy is communicated

– Induction

– Regular training and updating

• Ensure that it integrates well with other policies such as IT use and equality

Social media policy

• Contents

– Personal use of social media • Is it permitted at all?

• Is it permitted during working time?

– What kind of use might be prohibited? • Damaging business reputation

• Confidential business information

• Defamatory posts

• Harassing, bullying or discriminatory

• Political posts

• Extreme posts

Social media policy

• Contents

– Who owns contacts made on social media in the course of employment?

– Are employees permitted to disclose their affiliation to the employer in posts made under their own name?

– To what extent will the organisation monitor social media posting?

– What are the consequences if the policy is breached? • Ability to request that content is removed, even from personal

accounts

Checklist

• Do you have a social media policy in place?

• Has the policy been well communicated, are employees aware of the rules/ guidance?

• Do you deal with the use and ownership of social media accounts in contacts of employment and/ or employee handbooks

• Do you have contingency plans in place in case of ‘HR accidents’

Social media in the workplace

Whilst every effort has been made to ensure the accuracy of this presentation, the information

contained within it is not comprehensive and does not constitute ‘advice’. You should not take action without

first seeking professional advice.

Scrase Law Limited t/a Scrase Employment Solicitors.

Thank you

www.scraselaw.com

@scraselaw

@rupertscr