Social media and employment: overview

Matthew Briggs of Osborne Clarke begins a series of articles on the impact of social media on employers with an overview that looks at the potential risks for employers from employees' use of social media and the measures that employers can take to protect themselves against those risks. 

Introduction

The increase in the use of social media as a means of communication has created a range of issues for employers. Although there are potential benefits to be derived from employee activity in this growing but largely unregulated area, problems can arise, in particular from the apparent ease with which information can enter the public domain and be distributed far and wide as it goes "viral". 

A number of recent tribunal cases and reports in the press illustrate how important it is that employers understand how employees' use of social media can affect their business. They also highlight the importance of employers taking steps to minimise the potential risk to their business by adopting clear policies and procedures on social media use so that it is exploited only in a positive way.

Damage to reputation

Employees who post unguarded negative material that is connected to their employment, on a publicly accessible forum, risk damaging their employer's reputation. Employees might post comments that are directly critical of their employer, or material that is damaging by association. Employers should remind their staff to think before they post material that could impact on the employer on social networking sites. It may be appropriate for them to remind employees of the need to protect the employer's reputation for the better security of their own position.

Preece v JD Wetherspoons plc ET/2104806/10 addressed the reasonableness of the action that the employer took against a shift manager who had posted a series of abusive comments about customers on Facebook during work time. Despite the employer acknowledging that the employee had endured provocation by the customers, it dismissed her for gross misconduct. The employment tribunal found that the dismissal was fair. The employee had posted communications in the public domain that were viewed as lowering the reputation of her employer and she had breached company policy, which stated that employees should not write or contribute to a blog, including Facebook, where the content would lower the reputation of the company or its customers.

However, in Stephens v Halfords plc ET/1700796/10, the employment tribunal found that entries on Facebook by the employee that were critical of his employer did not justify his dismissal.

Defamatory postings

Negative or critical commentary may be eye-catching to the online community, but it is often made at a price. Content that an employee posts that has the purpose of demeaning a client or a competitor could result in the injured party bringing a successful defamation claim against the employer if it is found liable for the employee's actions. The employer will also be brought into disrepute. At the click of a button, publicity can be gained for all the wrong reasons leaving both employer and employee in the firing line. For example, in October 2008, Virgin Atlantic dismissed 13 members of its cabin crew team who had described the airline's passengers as "chavs" when posting on Facebook.

Cyber-bullying

Cyber-bullying occurs where an individual suffers an intimidating, hostile, degrading, humiliating or offensive environment that is created by the perpetrator's use of information technology. Employees who create abusive emails or postings about colleagues are likely to be guilty of cyber-bullying. Cyber-bullying, like other forms of bullying, can include not only abusive content about individuals, but also social exclusion and non-cooperation. Where cyber-bullying relates to a victim's protected characteristics, he or she may bring an employment tribunal claim under the Equality Act 2010 against the perpetrator and the employer. Employers will be liable for the actions of employees who harass colleagues if they do not take steps to prevent harassment in the workplace. The third-party harassment provisions in the Equality Act may also apply where the cyber-bully is a client or other party.

Therefore, it is important that employers put in place effective policies and procedures to counter bullying, including cyber-bullying. Employers will also be better placed to take action against offenders if they have outlined what is considered to be acceptable use of technology and identified that cyber-bullying can amount to gross misconduct and will warrant summary dismissal. Where an instance of cyber-bullying is alleged, the employer should take steps to support the victim, preserve relevant evidence, carry out a thorough investigation and pursue disciplinary action where appropriate.

Loss of client information

Employers in the business of providing services need to be protective of the sensitive and confidential information that they gather in relation to client contacts. Networking sites such as LinkedIn present employees with an opportunity to maintain their client contacts externally and potentially to exploit their employer's client information for their own benefit if they leave and go into competition with the employer.

In light of this, there are increasing moves by employers to take back ownership of this information through a combination of company policy obligations and restrictions in employment contracts. There is also general recognition by the courts that employers need to be able to protect the value of client contacts and restrict their use to the duration of employment only. For example, in Hays Specialist Recruitment (Holdings) Ltd v Ions and another [2008] IRLR 904 HC, the employee had uploaded a number of client contacts on to his personal LinkedIn account. The High Court made an order for pre-action disclosure of these contacts and all emails sent on the account while the employee used the employer's network. (Disclosure would make it possible for the ex-employer to plead fully its claim from the outset and enable the parties to have a fuller appreciation of the extent of the claim.)

Monitoring use of social media during work time

Some employees may spend an excessive amount of time while at work viewing social networking sites. This is likely to have a detrimental effect on their productivity, which employers will want to address. Employers should make clear their policy on non-work-related internet use. While banning access altogether may be extreme and counter-productive in most cases, employers that do allow access should outline in an internet use policy what amounts to acceptable use, the types of websites that employees can access (including social media sites), and the length of time that they may spend on the internet in a non-work capacity.

To establish whether or not employees are complying with the internet use policy and using social media appropriately and not excessively employers may need to monitor use. Employers often implement an internet monitoring policy, which can be extended to cover the use of social media.

Monitoring involves the processing of personal data and is subject to the requirements of the Data Protection Act 1998 and the Information Commissioner's Office (ICO) Employment practices data protection code (PDF format, 1.2M) (on the ICO website). Employers should monitor employees' email and internet usage only in a proportionate manner and following an impact assessment. They should first provide employees with detailed information about the method of monitoring, the information that they will collect and how they will process it. Employers should also bear in mind the implications of the Human Rights Act 1998 and art.8 of the European Convention on Human Rights, which concerns the right to respect for private and family life (see Right to respect for private and family life in the Human Rights Act 1998 section of the XpertHR employment law manual).

Workplace monitoring must be carried out in accordance with the Regulation of Investigatory Powers Act 2000. If an employer intends to intercept a communication such as an unopened email, it needs to be able to show that it has reasonable grounds for believing that both the sender and the recipient have consented to the interception. In the case of emails from an external sender, it may prove difficult for the employer to show consent from both sides of the communication. The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699) do allow employers to monitor communications without consent to ascertain compliance with business procedures or to determine whether or not communications are relevant to the business. However, employers should resist opening personal emails unless they have a clear reason for doing so, for example where they suspect that a crime is being, or has been, committed.

Using evidence from social networking sites

Employers can take into account employee postings on social networking websites as evidence in disciplinary proceedings. In Gill v SAS Ground Services UK Limited ET/2705021/09, a customer sales representative was dismissed for gross misconduct after her employer learned that she had posted comments and videos showing her attending London fashion week while she was signed off sick and receiving full pay. In finding that the employee had been fairly dismissed, the employment tribunal held that the employer had been entitled to take into account the evidence it gathered from Mrs Gill's online postings when reaching its decision.

Work-related use of social media

Employers can look to exploit social media to share information and knowledge internally or for external marketing and public relations through online blogs and micro-blogging services such as Twitter. Social media may also be used for recruitment and networking opportunities through employee use of sites such as Facebook and LinkedIn.

Employers will want to ensure that their reputation is not put at risk by the use of social media by employees in the course of their employment and on the employer's behalf. Employers may be liable in respect of defamatory postings made in their name and data protection or privacy breaches from leaked information. They may also be vicariously liable for discriminatory actions of employees. Bearing this in mind, there is a clear rationale for employers to impose controls over the ways in which their employees utilise social media on their behalf.

Regulating the use of social media

The absence of clear rules surrounding employees' use of social media can cause problems for employers that wish to take action against what they perceive to be its misuse. In Lerwill v Aston Villa Football Club Ltd ET/1304758/10, a football historian was dismissed for gross misconduct following postings he made on an unofficial fan forum. He was accused of making inappropriate and unprofessional comments towards fans in his capacity as a club employee, as well as posting comments despite being asked not to do so.

The employment tribunal held that his dismissal was unfair because the employer had failed to issue proper guidance that public comments were deemed to be made on behalf of the football club and could result in disciplinary proceedings or dismissal.

This case highlights the need for employers to make clear their policy on social media use. A policy should set out:

• the risks (to the employer and employee) attached to posting negative content on social networking sites;
• what is, and what is not, acceptable in terms of references to the employer on social networking sites;
• that the employer will take disciplinary action against employees who use social media in a way that is potentially detrimental to the business;
• the employer's rules on accessing social media during working time;
• that cyber-bullying amounts to harassment under the harassment policy;
• measures that the employer will take to protect confidential information relating to clients; and
• rules and guidance relating to employees' use of social media to promote the business in the course of their work.

Next week's topic of the week article will be a case study around social media and employment and will be published on 8 August.

Matthew Briggs (matthew.briggs@osborneclarke.com) is an associate in the employment team at Osborne Clarke.

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.