[This is the follow up piece to my article "Social Media in the Workplace" published on this blog last Saturday and, originally, in The Internet Newsletter for Lawyers/Law 2.0]

In my last article I wrote about the potential threats that face employers from the use by employees of social media and recommended that businesses have a social media policy.

To recap, the main threats to an employer from misuse of social media are;

1. Reputational damage
2. Breach of confidentiality
3. Time wasting
4. Liability to third parties
5. Liability to other employees and to prospective employees.

Why is a policy necessary? Employers need to manage their employees’ fairly and consistently and this applies to how they respond to their employees’ usage of social media as much as to any other area of managing staff.  There is an implied term of trust and confidence in every employment contract and breach of it may amount to a repudiatory breach, enabling the employee to claim constructive dismissal. There is also an implied term in every employment contract that an employer will provide reasonable support to ensure that the employee can carry out his/her duties without harassment or disruption by fellow employees, following the case of Wigan Borough Council v Davies [1979] ICR 411. As I mentioned in the last article, a business can potentially become liable to an employee if he/she is being “cyber-bullied” by another member of staff.

One of the most significant objections that employers can face when disciplining staff is that they acted unfairly or inconsistently.  That can give rise to a claim for unfair dismissal and, potentially in certain circumstances, a claim for discrimination.  Compensatory awards in unfair dismissal claims are currently capped at £68,400, whereas in claims alleging discrimination or bullying/harassment on the basis of a person’s gender, disability, race, sexual orientation, age or religious/philosophical belief there is no such cap, meaning that a discrimination claim could be catastrophically expensive for an employer.

When an employer takes disciplinary action it needs to follow the ACAS Code of Practice on Discipline and Grievances.  An unreasonable failure by an employer to follow that process can lead to the compensation in unfair dismissal cases being increased by up to 25%.  The burden of proof in the first instance is upon the employer to prove that what the reason for termination was (misconduct in these cases) and that it was reasonable in all the circumstances for the employer to rely upon that as a reason for termination (s.98 (4) Employment Rights Act 1996). An employer will need to show that the decision to dismiss was within the range of reasonable responses available in the circumstances to avoid an adverse finding.

In the area of social media use and abuse, there is plenty of scope for controversy.  To mitigate the chances of an employee bringing a successful claim in the Employment Tribunal the employer needs to set out what is and is not acceptable.  If this is made clear to all staff (and the policy is implemented consistently and fairly to all staff) it will reduce the chances of a successful claim by an aggrieved employee. A recent case (Stephens v Halfords Retail plc, unreported) reminded employers that blind reliance on a social media policy to dismiss a member of staff will not be enough.  The employer will need to act reasonably in applying the policy.  In that case the employee had posted unfavourable comments on Facebook about the company’s restructuring plans but had shown contrition when he realised that he had breached the social media policy, removed the comments straightaway and promised not to repeat his actions.  He was dismissed but won his claim for unfair dismissal.

So, what should the policy contain?  Should it be a detailed set of rules or merely guidelines?  Microsoft’s social media policy is minimalist: “Blog Smart”.  The Australian Broadcasting Corporation apparently has four elegant and succinct guidelines:

- Do not mix the professional and the personal in ways likely to bring ABC into disrepute

- Do not undermine your effectiveness at work

- Do not disclose confidential information obtained at work

- Do not imply ABC endorsement of your personal views

They encapsulate the major issues in a nutshell.  However, for some businesses they may be too brief for comfort.  Each policy should be drafted according to the needs of each business and, in my view, should have the aim of reminding employees that whilst their activities on social media might take place in a virtual vacuum, the consequences will be felt in the real world.

Probably the most important issue is to avoid reputational damage.  Policies should make it clear that disciplinary action will follow if an employee misuses social media either at work or after hours, on work provided equipment (laptops, desktops or smartphones) or kit belonging to the employee. Employees should be made aware that abusive, threatening or defamatory communications will not be allowed, whenever posted.  Privacy arguments are not likely to be successful – putting a status update on Facebook, let alone a blog post or a tweet – is sending that message out into the public domain, even if the sender thinks it will only get distributed amongst their Facebook “friends”.  It is always difficult for an employer to impose disciplinary sanctions on an employee for out of hours incidents, but the nature of social media is such that once the comment is made or photograph uploaded, the damage is done. A social media policy needs to make clear that disciplinary sanctions will be imposed even if the employee was acting in their own time, on their own equipment.

The policy should fit in with the employer’s other existing policies, such as the diversity policy.  Most employers who have got well-drafted employee handbooks will have a policy confirming that the business is committed to equality of opportunity in the workplace. If a homophobic or racist comment would not be tolerated on the shop floor, why would it be in cyberspace?

If employees are tweeting or blogging on their own accord about their industry or profession (such as I do with my own blogs) they should be asked to put a note on their profile to say that the views expressed are their own and don’t reflect the business’ own views. This may also be a good reason to have people tweeting in their own name even when tweeting on behalf of the business instead of on the corporate account – to minimise embarrassment if something goes wrong.

The employee should be educated on the policy and asked to sign it to confirm they have read and understood it.  This was what did for Ms Preece in the recent case of Preece v Wetherspoons.  She was a pub manager and suffered some very unpleasant verbal abuse at the hands of two irate customers.  Subsequently she posted some unpleasant remarks of her own about the customers, neither of which identified the pub or employer directly but did identify the customers in question.  She was dismissed and lost her claim at the Employment Tribunal because she had signed up to the social media policy which stated that disciplinary action would be taken where comments on Facebook (in this instance) were found to lower the reputation of the organisation.

Should an employer ban use of social media in the workplace?  Unless there is some very significant reason to do so (such as where confidentiality is of the highest importance, perhaps in a price sensitive area in an investment bank) then it is probably counter-productive to have a blanket ban.  Usage might be confined to lunch-breaks to ensure productivity and bandwidth is not adversely affected, but any employer that purports to be a modern forward thinking company is not going to look like that at all if there is a blanket ban on social media.  Alternatively, if the business wants to use social media to promote itself preventing employees’ own personal use of the same tools is not going to look very forward thinking either.

Another thorny issue is whether line or senior managers should engage with employees on social media platforms, such as becoming Friends with them on Facebook. Much will depend on the culture of the business but, on balance, it is probably best not to.  This does mean that the employer will miss out on “intelligence” on what is really going on in the firm but it might be best not to be privy to that, or for it to be known that the employer knows it. Instead an employer would be wise to include a clause in the contract of employment imposing an express duty on all employees to notify management if they become aware of a breach of the social media policy.

Finally, what of Linked In contacts?  The law as set out in the case of Hays Specialist Recruitment Holdings Ltd & anor v Ions & anor [2008] IRLR 904  is that any contacts made during the course of business for the employer will be confidential information and thus belong to the business when the employee leaves. That was a case on disclosure and Mr Ions was ordered to disclose those contacts on Linked In that he had generated in his capacity as an employee. It is a grey area but the business will be in a much stronger position to obtain disclosure of such contacts if the social media policy makes it clear that such  contacts belong to the employer.

Related posts:

1. Why Employers need a Social Media Policy
2. Old News Rehashed:Employers Warned to Monitor Social Media Usage at Work
3. Misuse of Social Media Won’t Always be Grounds for Summary Dismissal

Why Should Employers have a Social Media Policy? originally appeared on Jobsworth by Michael Scutt on 28/07/2011.

Yesterday Ian Barratt of Mind Strengths Ltd published his “Seven Top Stress Management Tips for Employees”.  Today I am publishing my “top tips” for employers hoping to avoid claims for stress at work from being commenced against them.   

First, some background. Stress at work is a complex and wide-ranging subject, touching on many aspects of employment and personal injury law. The claims will arise either under the law of personal injury (in negligence) or under the Protection from Harassment Act 1997 (PHA) or, alternatively for constructive dismissal and/or discrimination.  All four could be raised in the same instance, although it is not possible for an employee to sue in negligence and unfair dismissal unless the circumstances leading to the injury are independent of the facts relating to the dismissal.  Although many employers may feel “under siege” from all the rights that employees have, they should note that the law is not kindly disposed towards employees in this area: stress at work claims are difficult and expensive for employees to pursue successfully.  

No employer can be immune from ever finding themselves facing a claim from an employee, but following the tips below ought to reduce the risk of a claim arising or, if one does, of being successful.  There are many legal aspects to allegations of “stress at work” and care needs to be taken when an employee asserts that the employer has, in some way, caused him/her to become unwell.  Most allegations will state either that the employer has overloaded the employee with work or not provided enough support/resource to do the job properly or that a line manager has bullied/harassed/victimised the employee.  

It is also not uncommon for employees to claim that they are suffering from “stress” when they fall into dispute with their employers or disciplinary/performance management processes are commenced against them.  

How to mitigate the risk of these claims arising?   

1. Adopt best practice  

The Health & Safety Executive publishes a great deal of information on the subject.  In particular it has devised “Management Standards” which “define the characteristics, or culture, of an organisation where the risks from work related stress are being effectively managed and controlled. … The Management Standards cover six key areas of work design that, if not properly managed, are associated with poor health and well-being, lower productivity and increased sickness absence.” There are six management standards covering demands; control, support, relationships, role and change.  The TUC and ACAS also publish useful materials on stress at work.  

2. Be aware.  

Carry out risk assessments of the roles your employees are expected to undertake and the workplace in which the role is to be carried out.  This is not only integral to the HSE’s Management Standards but is a statutory requirement under the Health and Safety at Work Act 1974 (HSWA) and the Management of Health and Safety At Work Regulations 1999 (MHSW).  The HSWA applies to any employer with more than five employees and require “a written statement of his general policy with regard to health and safety at work of his employees”.  The MHSW requires a risk assessment “for the purpose of identifying the measures he needs to take to comply with” his particular statutory duties. Breach of this requirement can make an employer liable at civil law. However, a greater incentive for compliance is that an employer who does carry out a proper risk assessment is going to be better positioned to defeat a claim for stress at work than one who does not because the risk assessment process should uncover any obvious factors potentially giving rise to stress.  An employer will only be liable in negligence if his breach of duty of care to the employee was reasonably foreseeable.     

Take action before it is too late

3. Have a stress policy and adhere to it  

This might include providing employees with access to a counselling service or a telephone helpline. The courts look favourably on employers who do so, but the provision of such facilities won’t be enough on its own to rebut liability.  

4. Act fairly and consistently  

Stress claims can arise from incidents of bullying/harassment and victimisation.  Put in place policies promoting equality in the workplace – and enforce them.  Claims for discrimination can arise, apart from any other considerations over stress and there is no maximum cap for compensation unlike with unfair dismissal claims. We see many claims where the situation has been caused by fellow employees displaying completely inappropriate behaviour in the workplace, or line managers being “over-zealous” in trying to fulfil their roles. Ensure that line managers manage fairly and in a “human” fashion.   An employee suffering bullying at work from other colleagues or line managers may be able to bring a claim under the PHA for “distress” caused.  

5. Contracts of employment (1)   

Ensure that you have the contractual right (either in the contract of employment or the contractually binding section of the Employee Handbook) to require the employee to attend a doctor for the purpose of a medical report.  This can be a useful tool if the employee is off sick for any length of time because it means you can get a medical report from an independent expert rather than relying solely on the letters from the employee’s GP, who will often be very keen to be (too) supportive of the employee.  

6. Contracts of employment  (2)   

They should be drafted so that any entitlement to full sick pay (as opposed to statutory sick pay (SSP)) is in the discretion of the employer or, preferably, full sick pay will not be paid if an employee goes on sick leave immediately after having been asked to attend a disciplinary or performance management meeting.  Employees tend to become well again once they are not being paid.  SSP is payable in most cases (click here for main terms) for 28 weeks at the rate of £79.15.  Click here for more details on SSP.   Amending employees’ contracts of employment can be a complicated process, fraught with challenges of its own.  Please seek legal advice before deciding to do so.  

7. Act decisively  

If a stress at work problem looks like it might be rearing its ugly head, don’t ignore it.  Take legal advice as soon as possible.  

Related posts: Coming Soon … Miserable Monday  

If you are an employer or employee and need advice on your situation please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk.  

 None of the above material (or anything published anywhere on this blog by me or anyone else) constitutes legal advice to you.  You should not  rely on it and if you need legal advice about your situation you should take specific legal advice on your own situation.  I am always happy to provide legal advice via Dale Langley & Co.

Related posts:

1. Seven Top Stress Management Tips for Employees
2. Stress at work
3. UK Banks Facing Rising Lawsuits over Stress? Really?

Seven Ways for Employers to Avoid Stress at Work Claims originally appeared on Jobsworth by Michael Scutt on 19/01/2010.

As promised last Monday, I am delighted today to welcome my first guest blogger, Ian Barratt (pictured, right) of Mind Strengths Ltd, to present his Seven Top Stress Management Tips on this third Monday of January, the allegedly most miserable day of the year. Ian is a qualified stress management consultant speaker and author.  His book “The Phoenix Strategy”, co-authored with Amanda Robinson was published last October.  Mind Strengths Ltd is a consultancy company offering workplace strress management , wellbeing and support services.  Tomorrow I will look at how employers can minimise the risk of being sued for stress at work by employees. 

 Today, Ian focusses on how employees can manage stress. 

1. Identify and write down your major stressors 

By taking time to find out what is causing you stress, you will be taking a big pro-active step towards managing your problem areas. Start by writing these down, no matter how trivial they may seem. Then, focus on the top 2 or 3 that cause you the most stress impact and work on a plan to deal with these one at a time. Never try to fix all the problems at once or in an unrealistic timescale. You should also now be able to let go of the trivial stressors as these are not so important. 

2. Establish some goals and objectives  

It can be very satisfying to set some personal goals and objectives to help you kick start the New Year. Make these meaningful and achievable as there is little point in setting personal goals that you either get bored with or you cannot accomplish. Make sure that you set your goals over short, medium and long term timescales to keep you fully focussed throughout 2010. 

3. Develop a Personal Relaxation Plan 

A relaxation programme can be as simple as deciding to walk more, to perhaps joining a gym. Even if you take exercise for just 20 minutes a day, this will help your physical and mental wellbeing. An often overlooked benefit of exercising is that our brains release endorphins, which have as “feel good” effect and gives us feelings of euphoria. If a more mundane relaxation programme is your choice of escape, try meditation, yoga or pilates – all of which will teach you a range of breathing exercises that are critical to relieving and beating stress. 

4. Give yourself some thinking time 

We all need some down time occasionally where we can think more clearly about circumstances and events that may be causing our stress levels to rise. Setting time aside to think about these problems will help you to rationalise what is occurring and provide some clarity to help you move forward. If this proves difficult, step outside yourself and look back in as an outsider. You may find this makes things easier as you are viewing the problems from the outside as a third party. Ask yourself “what would I do if I were advising someone else?” 

5. Be positive 

Many stress related problems can be made worse by low confidence and lack of self-esteem. When you are down and depressed, any issue, no matter how big or small, can have a negative effect on the way you feel. Having low self-esteem generally means that you have negative thoughts about the outcome of a particular situation, event or about yourself. Learn to convert any negative thoughts into positive thoughts and positive energy. Write down any problem areas and you will find that the whole situation becomes less threatening on paper. Change your thinking from “I can’t do” to “I will be able to do.” 

 6. Practice good time management 

Time management isn’t for everyone but even when you can apply some of the theory, you will see noticeable differences in the way you run your life and it will help you reduce stress. For example, making a list of your tasks at work is a great start but not very useful if you don’t know how long each task will take, so remember to do this too. Also, prioritise tasks and ensure that you have a clear picture of what you will be doing today and each day of the working week – and stick to your plan! 

7.  Keep a Stress Diary 

The Stress Diary is a fantastic way to keep track of what may be causing you stress and will help you identify any patterns that may be occurring. To make this a meaningful exercise, you should keep the diary for a minimum of 2 weeks as this will enable you to see any trends. Make a note of anything that causes you stress on a scale of 1-10 (10 being high) but only keep scores of 6 and above. Discard the rest as they should be minor stressors – you need to focus solely on the major stressors. You may find some of the findings surprising! Finally, work on a plan to eradicate the problem areas. 

The Seven Top Stress Tips have been compiled by Ian Barratt, founder director of Mind Strengths Ltd. Ian is a qualified stress management consultant, author and speaker, who specialises in identifying and managing stress and improving wellbeing at both a corporate and individual level. 

For further information, please contact Ian on +44 (0)1634 314090 or via email at ian.barratt@mindstrengths.co.uk.  The website contains some additional useful information and can be found at www.mindstrengths.co.uk.

Related posts:

1. Seven Ways for Employers to Avoid Stress at Work Claims
2. UK Banks Facing Rising Lawsuits over Stress? Really?
3. Stress at work

Seven Top Stress Management Tips for Employees originally appeared on Jobsworth by Michael Scutt on 18/01/2010.

simply having a wonderful Christmas time ...

Everyone is producing reviews of the decade at the moment – they seem to be everywhere in the newspapers and online.  I was taken by The Independent’s sports poll in which Thierry Henry is a leading candidate for “Villain of the decade” for his recent handball against the Republic of Ireland, presumably on the basis that it is still fresh in everyone’s minds (and isn’t The Independent Irish-owned?).  That’s always the problem with these polls, it becomes hard to remember who the villains were in 2008, let alone 2000. 

In the employment law sphere, one villainous issue has stayed with us and probably deserves the title more than Thierry Henry: stress at work.  It has been a constant theme throughout this decade, simmering away in the background since the case of Hatton v Sutherland prevented it from becoming a rolling boil (perhaps running sore would be better?) back in 2002.  That case placed a very heavy burden on employees wishing to sue their employers for negligently causing their stress.  Then the case of Majrowski v Guy’s Hospital NHS Trust came along in 2005 and held that an employer could be vicariously liable under the Protection from Harassment Act 1997 (“PHA”) for causing distress or anxiety at work.  For a while that case looked like it would turn the temperature right up again, only for Conn v City of Sunderland [2007] to cool matters by saying that employers would only be liable where the bullying and harassing behaviour amounted to “near-criminal” standards of behaviour.

The recent case of Judy Veakins v Kier Islington Limited [2009], recently heard before the Court of Appeal (CA), has been cited as threatening to raise the temperature again on this difficult issue, by holding that Ms Veakins had been the victim of “oppressive, unreasonable and criminal (behaviour)”. I don’t think it will do so and I don’t think it takes the law any further forward.  In the WLR report of the case Maurice Kay LJ is reported as saying

 “It should not be thought from the present unusually one-sided case that stress at work would often give rise to liability for harassment.” 

 In this case, for reasons not explained, the employer did not challenge the evidence of the Claimant nor contest whether there was vicarious liability.  The CA was prepared to find that the Claimant’s allegations did reach the required standard but it must be open to question whether it would had the employee’s conduct been subjected to examination. To that extent this case does not assist in taking matters much further forward.  PHA claims are heard by the County Court, not the Employment Tribunal, which reminds us that the PHA was initially brought on to the statute book to give protection to people being “stalked”. To require “criminal” behaviour, as stated in the Conn case  doesn’t necessarily help: think about the offences of “threatening behaviour” or breach of the peace, where very low thresholds of behaviour can lead to the Old Bill feeling your collar.  The CA stated that whilst the PHA does not preclude employers being held vicariously liable this type of claim should be more properly heard in the Employment Tribunal.

Undoubtedly this case will be used by employees trying to pursue claims under the PHA, but I suspect that County Court judges will hesitate to rely upon it.  Instead the law on stress at work will remain as difficult and convoluted as before and that is not good news for either employers (for whom stress at work claims cause much stress) or employees. In the 1990s back injury claims were all the rage, to be replaced by stress at work in this decade.  It is time for the Courts to hand down a judgment that will resolve just what constitutes behaviour that is “oppressive and objectionable” in the workplace.  

I was going to do my own review of interesting cases from this year, but I’ve run out of time.  Thankfully, Daniel Barnett came to the rescue and pointed me in the direction of Wragge & Co’s review of the year.  It’s very good and is on their website so I don’t suppose they’ll mind me linking to it.

I’ve been rather snowed under with work this month and I’ve not had chance to devote as much time to the blog as I would have liked.  Normal service will be resumed in the New Year when I hope to unveil some (hopefully) interesting new features.  In the meantime, Happy Christmas and all best wishes for the New Year to you all.

Michael

No related posts.

Villainy afoot! originally appeared on Jobsworth by Michael Scutt on 24/12/2009.