It’s getting a bit scary. Recently I wrote about how I predicted that Gordon Turner’s serial-litigants.com search website for tracking down abusers of the ET system would be challenged (and it was, in Parliament). Then I wrote a piece about the need for employers to develop social media policies for use by their staff – and last weekend Vodafone hit the news when one of their employees misused the corporate Twitter account to write homophobic and sexist comments. Then Manchester United and Manchester City denied having banned their players from using social media. Finally the BBC tonight reports on a “cyberspace witch hunt” at the world’s formerly favourite airline, BA. 15 cabin crew members are reported to have been suspended for posting inappropriate comments on the Unite website. Unite retorts that the comments were on its Facebook page (so what?) and accused BA of “intimidation”. Clearly this blog is a happening place.
The article about whether employees should be allowed to blog by their employers is one that interests me, for obvious reasons. This is a personal blog, doesn’t purport to give legal advice, reflects my own views and not those of Dale Langley & Co. I would be rather displeased, to put it mildly, if I was told by the firm to desist from sharing my words of wisdom (and prophecy) with the wider world. I use it to promote Dale Langley & Co. But what if it wasn’t about employment law but some unrelated topic and that topic was a bit, well, racier? Does anyone remember the case of “La Petite Anglaise”, the English secretary who worked for an accountancy firm in Paris, kept a Bridget Jones style blog and was dismissed for gross misconduct. That was way back in blogging pre-history – circa 2006. She sued in France for unfair dismissal – does anyone know the final outcome?
The situation is relatively straightforward where the misuse takes place via the employer’s computer systems or during working hours. High ranking or high profile employees, such as Premiership football players, can probably reasonably be asked to be extra careful or even banned. The real issue arises from “ordinary” employees inappropriate use of social media.
The employer will have to be guided by considerations of damage to its reputation. Do the employee’s actions cause damage to the employer in any way? Has business been lost as a result? Arguably in these days of “no news is bad news” there is no such thing as negative publicity. Does anyone remember the fly-on-the-wall TV series about the Adelphi Hotel in Liverpool? The programmes made it look like an utter shambles, yet bookings went up afterwards. The test for any employer who dismisses a blogging employee for misconduct is whether dismissal was within the “range of reasonable responses” test. Whether dismissal was reasonable will depend upon all the facts. Would an employer be acting reasonably in dismissing an employee whose blog or tweet actually increased their business? Would it be reasonable if it was about a topic that was completely unrelated to the employer’s business? It’s a very difficult issue.
Whilst racist or homophobic comments will usually be unacceptable (as well as potentially being criminal) , what about an employee who is a member of the BNP, blogging about his political beliefs? If his employer tried to discipline him he might bring a claim under the Employment Equality (Religion and Belief) Regulations 2006 – see my earlier post on the case of Grainger v Nicholson about this issue – and an employee of a public authority might claim breach of the Human Rights Act for infringement of his beliefs or right to a private life. In the BA case above, Unite seem to be suggesting that BA is intimidating its members, presumably because of their union activities at a time of tension between the two sides. The employer could find themselves in a very difficult situation facing up to a claim for discrimination on grounds of philosophical belief.
Ultimately I think the way to look at the problem is to ignore the tools used to disseminate the comment and to consider what the employer’s reaction would be if the employee wrote a scurrilous article for a newspaper or made the comments on radio, television or orally. The only difference with social media is that it is so much easier to get published, the audience far wider and the speed of dissemination much quicker. Employers still need to cover themselves to make sure they have set out to their employees what is and is not acceptable usage.
I came across a really interesting post on this issue from an American blog called Proactive Lawsuit Prevention (see link below). It sets out some of the specific issues that the policy needs to cover – ethics, loyalty, confidentiality, maintaining optimum performance and so on. Well worth a read.
My next prediction? There’s going to be a lot more of it about. Oh, and with a general election coming up, a member of the Cabinet will get caught out. And a member of the England World cup squad.
Related Posts
Why Employers need a social media policy
Other blog posts
Elvis has left the building – Katz Consultants & Associates
Comments (0) 
