ACAS recently published a research paper on the use of social media in the workplace, called “Workplaces and Social Networking: The implications for Employment Relations“, as well as some very useful guidelines on how to draft a social media policy.   It’s also about time that ACAS provided some guidance in what is becoming an increasingly difficult area.

The research paper is well worth a read for anyone interested in this area or not persuaded of the need for a social media policy and it contains nine recommendations for implementing a policy. It was commissioned from the Institute for Employment Studies and comprises a review of academic papers, surveys and reported incidents over roughly the last ten years.   It is not limited to just the employment law issues raised by social media usage, but also cyber-bullying, access to and use of the internet in the workplace, the perils of using social media in the recruitment process, the issues to think about in formulating a policy and provides some useful conclusions.

For me there are two particularly significant points that come out.

Firstly, a policy on social media usage has to be considered in the context of the business’s wider policies. For instance, cyber-bullying is still bullying.  Discrimination online is still the same as discrimination offline.  Employers need to have policies to deal with these issues whether they happen in the staff canteen, the car park, or on Facebook.  The issue with cyber-bullying is that it can take place over a wider area and time frame, i.e. outside the workplace.  Why should that concern an employer though? If bullying is occurring via Facebook or other platforms and the common link between the perpetrator and victim is that they both work for the same employer, the poor old employer might be vicariously liable if it took no steps to address it once it became aware of the problem.

The report suggest employers could offer a 24/7 helpline or “help point” to guide cyber-bullied employees.    Larger employers may have this facility anyway and it is a “facility” that helps make the employer look soft and cuddly, but it won’t be an option for smaller employers who can’t afford to set one up or buy access to the helplines that exist on the market.  Neither will it enable an employer to escape liability if a claim does arise.  The only way of mitigating (not removing) that risk is for;

“Employers … to consider extending their workplace bullying policy to explicitly cover cyber-bullying both within and outside working time.” (p.29)

None of the three case studies the report looked at (HMRC, ACAS or BT) had specific, stand-alone cyber-bullying policies, instead they relied on their existing anti-bullying policies.  What this demonstrates is that employers need to have a joined-up approach to the issue.

The second stand-out issue was to do with whether employers should adopt a blanket ban on social media at work and it was timely because, according to another survey, this time carried out by Clearswift, a software security firm (and reported on by the online People Management journal)the number of employers now preventing staff accessing social media in the workplace has more than doubled over the last year, mainly because of security fears.  Managers are said to be concerned about “high-profile data leaks”, although my guess is that that is a smokescreen for concerns about workers’ productivity being compromised.

The conclusions to the ACAS report  suggest that a blanket ban is pointless;

“in some of the high-profile cases of unfair dismissals for what employers believe is inappropriate  use of social networking sites, the location of the employee when posting comments is immaterial. This potentially means that any employers who believe they have protected themselves through a blanket ban on use of social media through company IT systems may be misguided. This also means that employers who do not provide IT access to some staff or do not have IT in their workplaces cannot afford to ignore the issue.”(p.30)

This is probably the greatest challenge to employers – how do you deal with bad behaviour outside the office that impacts upon the business?  Education of employees is the key, backed up by clear guidelines must be the answer.  This is all sound, sensible advice but you can boil it down to what I call “the pub test”.  It’s simple:  if you were in a pub and your boss was standing next to you, would you call him (or her) a pillock, or worse?  Probably not.  Why then do it on a social network, especially Facebook, where your boss may be one of your “friends” or, just as likely, one of your “friends” will pass on your offending comment to your boss?  Once it’s out there, it’s out there.

What I find refreshing about the report though is that it is not all negative.  Indeed it recognises that there are positives to be drawn from social networking;

“it should also be considered that social networking can have specific benefits in the employment relations context. For example, blogging can be a positive action, allowing employees to present the human face of a company, if an employer is relaxed about allowing employees to blog. More widely, one of the main benefits of social networking, according to the organisations contacted for this research, is the potential business benefits of this medium, which are not yet fully understood. Allowing employees the freedom to use social networking sites can therefore be a positive step, help to develop the workforce’s knowledge of social media, and be part of a wider strategy of digital engagement with customers” (p.31)

The comments on blogging are particularly welcome! Employers that ban employees from blogging on work topics are losing out on a free source of publicity.  To say that employees might say the wrong thing misses the point – educate them on what shouldn’t be said and let them get on with it! Businesses need to come to terms with social networking for a variety of reasons, not the least of which is that it might actually bring some benefit.

For more reading on how social media can benefit businesses one of the best and most enthusiastic sources of information and advice around is lawyer-turned-consultant Julian Summerhayes.

The report finishes with nine recommendations, which include the need for policies to be simple, to se tout what is acceptable behaviour online, and it to be drafted in consultation with the workforce/trade union to gain legitimacy, amongst others.

ACAS also helpfully published a document summarising the report  entitled “Social Networking and … How to develop a policy”, which  comprise two sides of A4 paper and give seven concise reasons why an employer should have a “written policy on the ‘acceptable use of social networking at work’. These reasons include enabling the employer to protect itself from liability for the actions of its workers, comply with the law on discrimination, helping line managers manage performance and, crucially, give employees clear guidelines on what they can and cannot say about the company.    The document then gives advice on the issues the policy should cover, which include network security, acceptable behaviour for use of the internet and email, smart phones, blogging/tweeting and social network sites, data protection and monitoring.  A social media policy should set out how use of social media fits within the employer’s own business objectives.

For any ostriches out there hoping the issue of social media will go away, it won’t.  A good read of this very useful ACAS papers will be a good introduction to the steps to take.

Related posts:

1. Why Employers need a Social Media Policy
2. Old News Rehashed:Employers Warned to Monitor Social Media Usage at Work
3. Social Media in the Workplace

The ACAS Report on Workplaces and Social Networking originally appeared on Jobsworth by Michael Scutt on 09/09/2011.

Why aren’t you working?

Cyberslacking is the term given to people who spend their worktime surfing the net, doing their shopping, checking football scores or booking a holiday.  In fact, doing anything on the net that isn’t related to their jobs. Like you reading this now, probably.

Civil servants in Northern Ireland have allegedly been busy shopping, reading football stories and even planning holidays in the sun while they were supposed to be working.

The Belfast Telegraph worked itself up into a lather with this story on allegedly skiving civil servants at Stormont;
“Instead of focusing on their duties, “cyberslacking” officials have spent time monitoring football scores, booking trips away and shopping on Amazon and eBay”

Google was the most visited site (quelle surprise) followed by, amongst others, Facebook and the BBC. The Belfast Telegraph ranked 13th (with 140,000 hits) in the list of most visited sites (hmm, sour grapes perhaps?). It was ahead of Amazon on 108,000 visits.

Apparently civil servants “are issued with guidelines which warn their actions must not waste time or resources” but acknowledges that “Departments and agencies may permit staff to use official facilities for personal use, in their own time, providing that such use does not compromise the security of official data”.

Yes, the report shows that there were a lot of visits to unofficial websites and, yes, civil servants (like all employees) aren’t usually paid to surf the net for their own enjoyment.  But, this only gives us part of the picture.  We’re not told how many of these visits were made during work hours and how many during their “own” time, which would be permissible, or how long was spent surfing these sites.  It only takes seconds to check a football score or to see if Arsenal are any close to signing the centre back they so desperately need, yet that ranks as a visit.  I’m not naive. Of course some, maybe the majority, of the visits were made during working hours but this report doesn’t help to put the degree of cyber-slacking into perspective. C’mon Belfast Telegraph, must try harder.

Banning access to the internet is not an option for most office based employees now: I couldn’t function without access to it now that so many (legitimate) resources are online.  Yes I do go online shopping during office hours, as do most people.   If you’re working long hours and getting the job done why shouldn’t you use your work PC to arrange insurance, book  a holiday or read the odd blog or two?  Clearly accessing pornography or gambling sites is out of order but provided the sites visited are “kosher” and only a reasonable amount of time is taken what is the problem?  Put it another way, would it be reasonable for civil servants to be told they can’t make personal telephone calls or have a fag break during office hours?

 

Seamus McKee

BBC Radio Ulster picked up the story and featured it on their drivetime Evening Extra programme, hosted by Seamus McKee.  They even invited me along to speak about it, which I did.  The interview is at about 50 minutes into the programme.

Now get back to work!

 

 

 

 

 

No related posts.

Are you Cyberslacking? originally appeared on Jobsworth by Michael Scutt on 17/08/2011.

[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.

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

Related posts:

1. Why I Blog

Blog Off! originally appeared on Jobsworth by Michael Scutt on 12/02/2010.

Everyone is talking about social media these days and no longer is it confined to the purely social.  Many businesses are using it to promote themselves; good heavens, even lawyers are getting into it.  But use of sites like Facebook, My Space, You Tube and micro-blogging sites like Twitter present multiple challenges to employers. 

There have also been well publicised examples of employees being caught out by their status updates on Facebook – like the woman who complained that she hated her boss and called him a pervert, forgetting that he was one of her “friends” on Facebook.  He read the comments and a beautiful friendship was ended.  Other employees have pulled “sickies” and posted that onto Facebook.  Bad move.  Not only will the boss probably get to hear about it, the employee will become the laughing stock of the internet as millions of people all over the world receive the news of the indiscretion via round-robin emails.

On one level employers may not be persuaded of the merits of Web 2.0 and the plethora of seemingly time-wasting opportunities that it provides.  There is a great risk that staff could become inefficient and unproductive in surfing Facebook all day, or watching video clips on YouTube and that must be particularly galling for those employers who see no business application for these new technologies.  The temptation might be to come down hard on employees but that may provoke claims for constructive dismissal or unfair dismissal.  In an environment where for some people, surfing Facebook is as natural as reading a newspaper or a novel, an outright ban on accessing social media may be unreasonable.

For enlightened employers who do see the benefits of Twitter, YouTube, Facebook and the humble blog, the challenges are increased.  Not only is there the risk that some employees will take advantage to spend time promoting themselves rather than the business, they may post inappropriate comments on the web and severely damage the reputation of the business.   Worse still, the employer may end up on the wrong end of an action for defamation.  No longer is it enough just to have a policy covering access to websites and use of email (and don’t forget to include mobile phones and Blackberrys/iPhones in those policies).

In my view, employers face three challenges;

1. Excessive use of social media leading to loss of productivity

      2.    Risk of reputational damage/unwanted litigation to the business

      3.    Avoiding inappropriate use/abuse of social media without upsetting employment relations

Employers need to develop a strategy for use of social media in their business. This should not only cover how the business intends to exploit web 2.0 for its own purposes, but also a policy governing how employees should use it, again not just for business purposes but also for private usage.  Don’t forget that younger members of staff (“digital natives”) may be much more in tune with social media than older people.  In order to avoid grievances or unwanted employment tribunal claims be consistent in applying the policy.  As a solicitor who often advises employees, I frequently hear clients say that “Flossy was only given a written warning for the same thing” when they’ve been dismissed.      

The policy needs to take account of how the business wants to exploit social media and a “one size fits all” model isn’t going to work.  Instead the business needs to ask itself these sorts of questions;

1. Do we want to use social media to promote the business?
2. Who in the business will be responsible for using social media?  Senior management or more junior staff?
3.  What guidelines do we want to set them (these will probably need to be more specific for more junior staff)?  The guidelines will need to go beyond banning obscene or discriminatory comments and give guidance on how the business wishes to be perceived in the wider-world.
4. How will usage be policed and what sanctions will be put in place for misuse or abuse?
5. Will usage of the company’s computers be allowed for private use of Facebook, Twitter, etc?  If so, will usage be restricted to lunch-breaks or before/after work?  A complete ban may be unenforceable or risks causing ill-feeling.

It’s not an exhaustive list and I would be pleased to hear from anyone with additional questions that ought to be added on.

To be successful, all users will need to be “on message”.  In turn this may mean getting all users to “brainstorm” to devise the “voice” of the business.   Social media offers massive potential for businesses to communicate their message, develop their identity and build their brand.  Having a successful social media policy is at the heart of getting that right.

I would welcome your comments on any of the above and if I can assist further please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk

Related posts:

1. Why Should Employers have a Social Media Policy?
2. Old News Rehashed:Employers Warned to Monitor Social Media Usage at Work
3. Social Media in the Workplace

Why Employers need a Social Media Policy originally appeared on Jobsworth by Michael Scutt on 26/01/2010.

Following on from my recent post about the usefulness of Twitter, today’s cartoon by Alex in The Daily Telegraph provides his usual incision and wit into the subject of whether Twitter is any use at all.  I’m converted to it, albeit I don’t find nearly enough time to “tweet”. 

The recent poll I ran on this subject has given a resounding answer; most of you think Twitter is a waste of time. 

Related posts:

1. Do you Twitter?
2. Thanks be to Alex …
3. More from Alex

Alex says it best … originally appeared on Jobsworth by Michael Scutt on 11/06/2009.

I’ve got to admit my ignorance, I’ve only just discovered the verb “to dooce” and what a great word it is!  There are various definitions but most include ”to lose your job because of something that you wrote on your blog”.   Rather incongruously, it can also mean to be afflicted with constipation, although if you were about to lose your job because you spilled the beans on your employer,  it’s unlikely that constipation would be your main concern. 

It was the recently reported case of Kimberley Swann, the 16 year old girl from Essex, who was fired from her job as an adminstrator because she described her job as ”boring” on Facebook that brought me up to speed with  this addition to the language.  For those who missed the story, Miss Swann worked for a company called Ivell Marketing & Logistics in Clacton  which is, I’m sure, a  fun and exciting place to work.  She had only been there three weeks when she posted an entry on Facebook stating that her job was “boring”.  Remarkably she didn’t even name her employer and it was only her colleagues with access to her Facebook page that put two and two together  and informed the company.

She was sacked on the basis that her comments were a “display of disrespect and dissatisfaction [that] undermined the [working] relationship and made it untenable”.  In other words a breach of the implied term of  trust and confidence that needs to exist between employer and employee.  Tellingly Kimberley had only been employed for three weeks and therefore had not acquired her employment rights.  In particular, because she had not got 12 months continuous employment experience with the company, she could not sue them for unfair dismissal. 

In my view had she been able to sue them the employers would never have taken this action.  It was clearly unfair.  The comment was not made during work hours but when she got home, so there couldn’t have been any issue about her not having her nose to the grindstone whilst actually at work.  Furthermore she did not mention the company’s name  online so the effect of her words would be very limited indeed.  

Finally, from the reports I’ve read the employer did not undertake any investigation or disciplinary process. Under the current law (which  will change on 6th April next)   that makes for an automatically unfair dismissal (had she been eligible to apply).

Many employers now seem to have rules and policies about the use of social networking sites during working hours (Jobsworth, of course, has few friends so the issue doesn’t arise for him) and more general internet usage policies have been in the workplace for as long as we’ve had the internet.  Repeated breach of such a policy might be a cause for dismissal after a proper investigation and appropriate warnings had been given.  Using the company’s computers to download pornography would constitute gross misconduct.  Employers need to consider carefully how their internet usage/social networking sites policies operate and what sort of behaviour they want to prevent, but I cannot imagine any policy being able to prevent what is, after all, probably just fair comment made outside work hours and not using work equipment.

The employer’s actions were really a vast over-reaction.  The TUC General Secretary, Mr Brendan Barber, said employers needed to have thicker skins when dealing with comments on social networking sites and that they wouldn’t dream of following their staff to the pub to see if  they  “were sounding off about work to their friends”.  Quite right too.  However, having read the report of the story in The Mirror  I wonder if the key to the story isn’t with the sentiment contained in the comment but in the actual words she used.  Apparently she wrote “first day at work!! So dull … im so totally bord (sic)”. 

One further definition of dooce is “to write repetitively on a subject for at least four years”.  I’ll be bearing that in mind from now on.

No related posts.

What the dooce? originally appeared on Jobsworth by Michael Scutt on 11/03/2009.