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By Michael Scutt, 12/02/2010 10:46 am

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

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Elvis has left the building – Katz Consultants & Associates

Comments (7)

By Michael Scutt, 26/01/2010 10:00 am

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