ICO Kim Woods
joeph2
Social Media in the Workplace Linky Trott
Abstract There is no doubt that most businesses use social media and collaboration tools such as social business software of some kind or another and embrace the benefits that these can bring. In a 2009 a global Manpower survey, businesses identified the main benefits of using social media as; brand building, fostering collaboration and communication, as way of recruiting new talent, improving employee engagement and driving innovation. But there are also risks. This article examines the main legal risks that can arise in the workplace as between a business and its workforce and considers how the Courts and Tribunals are responding to social media issues arising in the workplace. Introduction If a business has a concern about the use of social media, a blanket ban is clearly an option. Whilst that may feel like the most simple approach, it is unlikely to be practical. Even as far back as 2009, the Manpower survey observed that “the younger generation consider social media tools as a
Biography Linky Trott is a Partner at law firm, Edwin Coe. She provides day to day advice on a comprehensive range of employment issues for established corporate clients including the negotiation and provision of strategic advice on severance arrangements, bullying and harassment claims, the management of ill health and capability dismissals, dealing with allegations of discrimination, collective redundancies and Board disputes. Linky also undertakes High Court injunctive work to enforce or resist post termination restraints and the protection of confidential information. Working with Senior Executives and Board Directors, Linky regularly advises and helps to negotiate terms of Executive service agreements to include bonus schemes, guaranteed payments and share options in regulated and non regulated industries. She has provided strategic advice on a number of successful team moves within the communications and financial sector acting for both the poaching competitor and the individuals being approached. Linky also advises on data protection, commercial agents and the Conduct of Employment Businesses and Employment Agency issues. Linky sits on the Employment Committee of the Law Society and is Chair on the In and Around Covent Garden Business Forum. She is also a member of the Employment Lawyers Association, and has appeared on ITV and Channel 4 commenting on Employment Law issues arising in the news and is a regular speaker at conferences on employment issues.
Linky Trott Partner
Edwin Coe
Keywords Risk, Rewards, Safeguards, Recruitment, Human Rights Act 1998 Paper type Opinion
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prerequisite for doing business” and with generation Y having been in the workplace for around ten years, it is unlikely that staff will tolerate a blanket ban. Time wasters Employers can of course monitor an employee’s use of social media in the workplace (subject to telling them that will happen) and if there is excessive use, then they can be disciplined as long as the extent of any permitted use is clearly defined in a relevant policy. That is well illustrated by the case of Grant & Ross v Mitie Property Services (UK) Limited. In that case, two sisters were dismissed from their employment for accessing non work related internet sites during working hours. They brought proceedings for unfair dismissal and won. The factors the Tribunal considered relevant were:
This case illustrates the importance of a business having an internet use policy that is well thought out and sensibly implemented and acts as a word of caution for employers who follow the letter rather than the substance of the policy. Protecting confidential information One of the greatest dangers with social networking sites in relation to the disclosure of confidential information is that employees forget how ‘public’ certain platforms are. In addition, the very nature of many sites is to encourage participation in the ‘on line’ conversation, where an exchange of views or information can feel like a private discussion but is in fact available for all to see. In the circumstances, there is great scope for the accidental disclosure of confidential information. One hears of lawyers taking to twitter to comment on how exciting it is to work on the ‘vodafone’ deal (a clear breach of not only confidentiality but also possible regulatory requirements about announcements of deals to the market etc) or of employees getting drunk on a Friday night and at 2 am commenting on blogs confirming sensitive information relating to their employer. The only thing an employer can do to prevent these sorts of breaches is to educate its workforce. There are however some breaches of confidentiality that employers have not even thought of but which are placing them at risk in a number of ways. Consider for example, a salesman who has his own personal ‘LinkedIn’ account who then ‘links in’ with most of the customers he meets through his work. These
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The Company’s internet use policy said that it could only be used for personal use outside “core working hours” but then didn’t define what that was; The employer was unable to demonstrate that the internet use had affected their work performance; and The websites visited were of an innocent nature.
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are customers of the business and the business may have agreed to keep the identity of its clients confidential for any number of good commercial reasons. Does the salesman know this? Does the business want other customers to know the identity of other customers of the business? Is this appropriate or desirable? The answer may be yes but the point is that any business should ask itself such questions as it develops its social media policy so that it is aware of the risks and has either discounted them or addressed them. Protecting client relationships and the enforcement of post termination restrictive covenants I have referred above to the circumstance where a salesman has his own LinkedIn account and links in with the clients of his employer’s business over the course of his employment. But what impact does this have on any post employment restrictive covenants which might be in his contract? If a particular salesman leaves to join a competitor and updates his ‘status’ on his LinkedIn account to say that he is now working for X company, it is usual (depending on settings) for all of those in his contacts list (including those clients of his former employer) to get a notification of his status update with the details of where he can now be contacted. Is that a breach of any post termination restrictions that prevent him from soliciting clients of his old employer? There is a very strong argument that, yes it is. There is no case on this point to date, but it is hard to see how a status update could be distinguished from an old fashioned email to those clients of the former employer, which would be a breach of such a restriction. In the case of Hays Specialist Recruitment v Mark Ions and Exclusive Human Resources Limited, Hays successfully applied to the court for the disclosure of all business contacts in Mr Ions’ LinkedIn account. Mr Ions had worked for Hays as a recruitment consultant. He gave notice to Hays and started to compete with them within a matter of days of leaving. Hays said it maintained a confidential database of all of its clients and candidates and alleged that after Mr Ions had decided to leave in order to set up in competition, he began a campaign to migrate those client contacts to his LinkedIn account whilst he was still employed by Hays by inviting client and candidates to link in with him at his personal LinkedIn account. The court accepted the evidence of Hays and found on an interim application for an injunction (so not after a full trial) that on the face of it, his conduct was a misuse of Hay’s confidential information during employment and his use of those client contacts in his competing business was a breach of his restrictive covenants. This case is good news for employers as it illustrates that the courts are likely to approach modern social networking mediums in the light of well established principles governing the protection of confidential information and the
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enforcement of post termination restrictive covenants but enforcement will become increasingly challenging. Employers can increase their odds on being able to effectively protect their confidential information and ability to enforce restrictive covenants by having clear internal policies about what is and what is not confidential information and by including non dealing post termination restrictions with former clients so that solicitation does not need to be proved. Protecting reputation The cases that hit the headlines are the ones that usually involve a business trying to protect its reputation. Whilst the management of the reputation of the business is a concern for employers, the legal risks in addressing matters can be complex. Where the comments on websites made by employees are directly related to work and/or colleagues, it is easy to see why a dismissal of the employee would clearly be within the “band of reasonable responses” which is the test a Tribunal would apply when deciding if a dismissal is fair or not. These cases also make you wonder what the employee was thinking at the time! An example of such a case is when a high street store dismissed one of its employees for posting onto a social networking site, “I work at [name of store] and can’t wait to leave because it’s s&*t”. The result was dismissal for gross misconduct. It was clear that this was a publication of an offensive comment about the business itself and fundamentally undermined trust and confidence between the employer and the employee. Another case in point is that of Taylor v Somerfield which is an unreported case from July 2007. The Claimant had been dismissed for bringing the company into disrepute when he posted video footage on YouTube which had been filmed on a mobile phone, showing two colleagues hitting each other with plastic bags and generally horsing around the Somerfield. The employer did not dismiss for horsing around in the warehouse (presumably because it was during a legitimate break and was of an innocent nature) but rather for posting the video of it on YouTube thereby bringing the business into disrepute. The Employee who was dismissed, issued proceedings for unfair dismissal and the Tribunal found in his favour. The Tribunal noted that the only way in which Somerfield could have been identified from the video was from the colour of the uniforms and the plastic bags. Furthermore, the video was only on YouTube for three days and on closer analysis it seemed the video had only been viewed eight times, three of which were by Somerfield managers investigating the disciplinary offence! This case makes it clear that the extent of the ‘publication’ will be relevant and consideration of the actual, rather than the speculative, reputational damage will need to be considered.
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Where, however, a business is considering the conduct of its employees on social networking sites outside of work the position is rather more problematic. Where an employee has committed a criminal offence outside of work, which could impact on the employee’s ability to undertake their job or where the conduct is inconsistent with their professional role, then a dismissal is likely to be fair. But where there is no criminal activity, the employer tends to seek to rely on ‘damage to reputation’ as a justification for dismissal or disciplinary action where the misconduct complained of arises as a result of a non work related activity because generally employers can’t take action against employees for their private activities outside of work. One case which gives an insight into the line that the Courts and Tribunals will take in these matters is the case of Smith v Trafford Housing Trust [2012]. Mr Smith was demoted because he had posted his views on his Facebook page about gay marriage. He brought a breach of contract claim and won. In finding in his favour, the Court specifically referred to the following: the fact that no reasonable reader of Mr Smith’s Facebook page could think that his comments were made on behalf of the Trust (although the Trust was mentioned on his Facebook page as his employer); that his views were expressed moderately and were his personal views expressed on his personal Facebook page over a weekend; and fundamentally, the fact that Mr Smith’s Facebook page was clearly for non work related purposes and it had not acquired a work related context. Contrast that case with the case of Gosden v Lifeline Project Limited [2009]. The facts of the case were a little convoluted but in broad terms, Mr Gosden had sent an email to a friend of his who worked at a client of his employer. The email was sent from Mr Gosden’s personal email account to the friend’s personal email account but it was marked “It is your duty to pass this on!” It was an email that contained sexist and racist comments. The friend did pass it on which is how it came to be in the client’s email system and eventually a complaint as to its contents were made and the email and its author came to be reported to Mr Gosden’s employer. Mr Gosden was dismissed by his employer for having brought them into disrepute with their biggest client and for breach of their equal opportunities policy. He brought a claim for unfair dismissal and lost. This case is a warning for individuals who circulate such emails in private with little thought for where they may then be sent, but it is interesting to note that the Tribunal was more concerned with the fact that Mr Gosden had no control over where it may be sent on, rather than the fact that the subject heading urged people to send it on. Whether or not it may have influenced the final decision or not is hard to assess but in the sorry state of affairs, Mr Gosden didn’t help himself by firstly denying that he sent the email and then denying that it was in any way offensive. The Gosden case seems to set the high water mark in terms of activities undertaken in private which impact on the employer’s reputation but it serves as
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a warning to employees and it will be interesting to see if private emails sending jokes now have a standard heading ‘do not pass this on’! Defamation It is now well known following the Lord McAlpine litigation that defamation claims can and indeed will be made against individuals who make defamatory remarks on twitter or other networking sites. But the question for employers is when and if they become vicariously liable for any defamatory remarks made by their employees. This brings into play the complicated area of whether or not the defamatory remarks were made during the course of employment or not. If so, the employer could be vicariously liable and it will not be enough to avoid liability simply by that we have instructed all employees not to make defamatory remarks on social networking sites (although this should of course be included in any social media policy). The point is whether the publication is incidental to an act that the employee was authorised to do as part of their employment. This means for example that it might be prudent for an employer to require employees who want to tweet to have separate work and personal twitter accounts or expressly state that employees who wish to tweet have to tweet through the business’ account only in relation to work related matters and not through a ‘personal’ email account. Whether or not that is practical for any particular business will turn on its particular facts but it is something that employers should consider. Furthermore, employers should always require employees to add a disclaimer as to the liability of the business on any apparently personal social media site or profile but whether or not that would ‘save’ the business from vicarious liability is a different question. Recruitment risks A Microsoft survey recently found that 41% of employers said they had actually not hired someone as a result of their on line reputation, known as “netrep”. If however, employers do consider someone’s netrep before recruiting, there are legal risks. The most obvious is the potential for claims of discrimination. All of those responsible for recruitment will have become aware of the increasingly ‘neutral’ content of CVs which do not contain details of someone’s age, nationality or marital status but this is not always the case when looking at someone’s profile on social net working sites. If such sites are considered, and information about protected characteristics (age, sexual orientation, marital status etc) is obtained, if that information is then given to the recruitment decision maker, there could be grounds to raise an inference of discrimination if the application is not successful. In the circumstances, if a job applicant’s netrep is to be considered as part of its recruitment process, care should be taken to ensure that any information relating to a protected characteristic that is not relevant to the role etc is not passed to the decision maker.
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It is also likely that issues will arise under the Data Protection Act 1998 (DPA) which regulates the processing of personal data and prescribes when it is and when it is not lawful to process that data. There are onerous obligations in relation to the processing of sensitive personal data (such a sexual orientation and political beliefs) but even generally, the processing must be fair, lawful and proportionate and for one of the legitimate aims as prescribed in the DPA. Thus employers must be mindful of their DPA obligations when ‘processing’ such data (looing at netrep) as part of any recruitment exercise.
The management of employee relationships to prevent bullying, harassment and discrimination As soon as the employer becomes aware (most often through a complaint made by an employee to the employer), that one employee is bullying or harassing another or subjecting them to discriminatory conduct through a social networking site, the employer should take action. The fact that any such conduct is on a ‘private’ social networking site does not make a practical difference when those two individuals have to work together. It is conduct between two employees in the same way as if it happened at work and the employer must be seen to act once it is aware of what is happening.
Human Rights Act 1998 Increasingly, employees who are facing disciplinary action as a result of something posted on a social media site are raising their rights under the Human Rights Act 1998 by way of a defence. The most common issue raised is the right to ‘respect for private and family life, home and correspondence’ (article 8) and this extends to a reasonable expectation that employers will not intrude into their private life by looking at their personal social networking sites to monitor conduct for example. Additionally, employees raise article 10 which is the right to ‘freedom of expression’. The case law in the UK has tended to show that rights under the Human Rights Act 1998 will not ‘save’ an errant employee where it has disparaged its employer and damaged its reputation or where it has abused customers or colleagues. Additionally, the right to privacy has proved difficult as a defence because it is usually agreed that any right to privacy has been waived by the individual by ‘posting’ this information on a public forum like Facebook. There was a case in 2009 of a 16 year old called Kimberley from Clacton who was dismissed from her marketing job of just three weeks after describing it as ‘boring’ on her Facebook page. She didn’t name her employer but other members of staff were ‘friends’ of hers on Facebook and saw the comment. It attracted media attention at the time and a comment from the TUC that employer’s should get a ‘thicker skin’ in relation to such issues. Two quotes at
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the time, one from the company and one from the TUC sum up the differences of opinion that Tribunals are going to have to determine:
The best quote from the case however came from Kimberley’s mother who said, “This is a 16 year old girl we’re talking about. She says Clacton is boring but we’re not going to throw her out of the house for it”. Quite right. What should be done? There are, as with most things in life, risks and rewards in the use of social media in the workplace but one thing is clear, it is not going away and employers have little alternative but to address it. The case law, time and time again, demonstrates that those employers with well considered and comprehensive social media policies are best placed to protect the interests of the business when issues arise and as a minimum, suitable and proportionate policies should be put in place.
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TUC: “Most employer’s wouldn’t dream of following their staff down the pub to see if they were sounding off about work to their friends” and Employer: “Had Kimberley put up a poster on the staff notice board making the same comments and invited other staff to read it there would have been the same result.”
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