Jobsworth by Michael ScuttTag: social media policy | Jobsworth by Michael Scutt

Employer was Justified in Sacking Employee for Comments on Facebook

Michael Scutt — Wed, 18 May 2011 09:00:35 +0000

Employers often wonder what steps they can take to discipline an employee who misuses social media, especially where the employee claims that the employer was not identified. Liverpool ET dismissed a claim by a Bar Manager recently where her status updates on Facebook were used to dismiss her for gross misconduct.

In Preece v J D Wetherspoons PLC , the Claimant had had to eject two customers (“Brian” and “Sandra”) who were both, as it seems, elderly. They had been disruptive. A while later the Claimant received three abusive telephone calls from Brian and Sandra’s daughter in short succession.

The Claimant, who was still on duty, used her phone to update her Facebook page, which was connected to 646 “friends”, of whom 40 to 50 were said to be close. She got into conversation with other employees (who were off duty) and a customer. Miss Preece gave vent to her feelings and mentioned Brian and Sandra by name. She also said they had been barred and stated that she hoped Sandra would break her hip. A few days later Sandra’s daughter had discovered the exchanges and made a complaint to Wetherspoon’s customer complaints department. Disciplinary proceedings followed which led to the Claimant being dismissed for gross misconduct.

Miss Preece admitted her culpability and raised the issue of provocation as mitigation. Crucially, she also thought that her privacy settings were set so that only school friends and work colleagues could read her updates.

Wetherspoons had a social media usage policy which the Claimant agreed she had breached and had lowered the reputation of the company.

The company therefore dismissed her because she breached their social media policy: the customers were named and had been identified, her Facebook privacy settings were not as secure as she had thought; her comments were inappropriate, abusive and written whilst on shift.

Furthermore, her comments on Facebook were in the public domain and although Article 10 of the ECHR gave the Claimant a right to freedom of expression, but Article 10(2) rescued the employer on that point:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary [my emphasis].

The employee therefore lost her claim for unfair dismissal. It may seem very harsh in retrospect; after all she had been subject to a very unpleasant level of abuse and had been provoked. Had she merely vented her anger to a colleague or friend, say via telephone, or face to face, nothing more would have happened. But, that is the problem with social media – comments spread very rapidly, Facebook “friends” may be nothing of the sort and businesses will usually want to protect their reputations carefully.

Would customer shun Wetherspoons because of this dispute? Unlikely. The pints would still have been pulled and Brian and Sandra’s business was lost anyway because they were subsequently barred from the pub. Their actions were within the range of reasonable responses available to the employer and hence the dismissal was fair.

The lessons to be drawn from this? For employees, don’t ever use social media platforms to vent your frustration in this manner and circumstances, comments on Facebook are in the public arena. Employers? Make sure you have a properly drafted social media policy that you can rely on in these type of situations.

Employer was Justified in Sacking Employee for Comments on Facebook originally appeared on Jobsworth by Michael Scutt on 18/05/2011.

Can You Slag Off Your Boss on Facebook?

Michael Scutt — Wed, 10 Nov 2010 12:31:33 +0000

Have you ever ranted about your boss or a fellow worker using Facebook, or social media? If yes, what happened?

In the USA an “emergency medical technician” (what’s that, a paramedic?) was fired for slagging off her boss on Facebook. Yesterday, the New York Times carried a report on the actions of the National Labor Relations Board (“NRLB”) (a US business-union forum for supervising industrial relations it would seem) which filed a complaint alleging that the employer had breached the National Labor Relations Act which, according to the report, protects workers from being disciplined for discussing working conditions or unionization.

The employer, American Medical Response of Connecticut, is reported as having a policy that “bars employees from depicting the company “in any way” on Facebook or other social media sites”. They say the employee was in breach of that policy and, hence, she was dismissed. The report says that she issued several “vulgarities” to ridicule her supervisor and also called him (in terms) a psychiatric patient. She is alleged to have done this on her own computer in her own time.

The NLRB’s case will go to trial next January.

Freedom of Speech

Although the facts occur across the pond, it’s an interesting case and raises issues here for both employers and employees.

I took part in a brief discussion on the BBC World Service’s “Newshour” programme yesterday debating this very issue .

Hear @michaelscutt & @Atticmedia discuss whether employees have the right to moan about their working conditions on @twitter, @facebook &c

09/11/2010 12:29 pm via webReply RetweetFavorite

@BBCNewshour

BBC Newshour

There is no equivalent of the NRLB here from what I understand of it and there is no legislation protecting employees’ freedom of speech. The Human Rights Act (HRA) does allow a UK citizen to enforce the European Convention on Human Rights (ECHR) through the UK courts and Article 10 does protect the individual’s right of freedom of expression, but the HRA is only for use against public bodies, not the private sector. A challenge under the HRA for breach of Art 10 will probably occur at some stage, and I’d be interested to hear from any Human Rights lawyers out there on this.

But, leaving that aside, what is the situation in the workplace in the UK on this issue? Should an employee’s right to say what they like be fettered by the employer? What are the issues for an employer? What can be done to clarify the law? Like so much else to do with the law, much depends on the circumstances.

What about the UK?

Let’s assume that this particular employee had been working in the UK, in the private sector. What would her rights have been?

The offending comments were posted on Facebook on her own PC and in her own time. The identity of the employer could be ascertained from her attack on her colleague. Once on Facebook the comments would have been visible either to her friends or even the wider world if she had not set her privacy settings very high. In other words, because of the viral nature of social media there is every risk that her comments could have reached a much wider audience very quickly; and then stayed there permanently.

That impacts upon the employer because what might otherwise be a private matter becomes disseminated far and wide, impacting the employer’s reputation. The crucial element is the identification of the employer. If the comments had been made so that a reader could not have deduced who the employee worked for it would be, in my personal view, virtually impossible for an employer to take disciplinary action.

Reputational Damage and Other Risks

Employers face several risks, including reputational damage. They might incur third party liability if an employee uses a work computer or the company’s own Facebook or Twitter account to make defamatory comments. Fellow employees criticised by an employee might raise a grievance and claim they are being “cyberbullied” or bring claims against the employer for discrimination or harassment under The Equality Act. Confidential information might be disclosed, bringing the employer into litigation from its suppliers or business partners. The risks are many.

Unfair Dismissal?

In English law the employer would have to rely on “conduct” as the reason for the disciplinary action, potentially even gross misconduct justifying summary dismissal. Secondly, the employer would have to prove to an Employment Tribunal (assuming that the employee had sufficient length of service to have acquired the right not to be unfairly dismissed, currently being 12 months) that they acted reasonably in relying upon that incident as a reason for dismissal. This is the crux of the matter.

If the employee has expressed him/herself in “vulgarities” and cheap abuse, as is alleged here, then it is more likely that an ET will hold that the employer acted reasonably in dismissing. However, if the comments were critical, but moderately expressed, or raised genuine, justifiable complaints an ET is likely to be more sympathetic to the employee. Furthermore, if the employee’s comments amounted to a “protected disclosure” under the Public Interest Disclosure Act (PIDA) then the claim before the ET is likely to be one of “whistle-blowing”. An employer would need to move very carefully in that situation to avoid a potentially unlimited compensation claim.

Consider the case of Kimberley Swann who was sacked from her job as an Office Administrator for criticising the company for whom she had worked for a few days as “boring”. She didn’t name the company and posted the comments to Facebook in her own time from her own PC. It came to her boss’s attention because she had become “Friends” with other people in the company. Had she been with the company for more than 12 months she would have been able to sue for unfair dismissal and, again in my personal view, she would probably have won her case.

How secure are your comments on Facebook?

Consider the example of the 13 Virgin Atlantic Cabin Crew sacked in November 2008 for posting on the Virgin Atlantic Facebook page claiming their passengers as “chavs” and saying the planes were full of cockroaches. Even if those comments were posted in the employees’ own time and on their own computers, Virgin must have been justified in taking this action – calling passengers “chavs” is a clear case of reputational damage – but I would be interested to hear if anyone knows whether any of the sacked staff did pursue a claim to the ET. Please leave a comment below.

That article in The Independent also throws up another aspect of this issue which my radio discussion touched on briefly: privacy settings. Many people are confused about their Facebook privacy settings and the company itself has been criticised over this issue in the last few months. But even if you have put those settings to the most secure they can be, you can’t prevent one of your “Friends” from printing off the offending comment and showing it to your boss – ask James Brennan, formerly of the John Lewis Partnership, referred to in that article. Are your “Friends” on Facebook really your friends? How well do you know them?

Does the Law Need to Change?

The Newshour discussion ended with the question, “does the law need to move on to keep up with social media?” I think it is more a matter of education at the moment and both employers and employees understanding the possibilities and the risks associated with social media. Employers need to set out clear guidelines on what is and is not acceptable online behaviour and that is going to have to cover employees’ private usage of Facebook and Twitter etc.

What do you think?

Can You Slag Off Your Boss on Facebook? originally appeared on Jobsworth by Michael Scutt on 10/11/2010.

Social Media in the Workplace

Michael Scutt — Sun, 16 May 2010 15:06:06 +0000

Last Friday I gave a presentation to users of the City Business Library at the Guildhall in London. The topic was the use of social media in the workplace and the issues it raises for employers. You can view the presentation by clicking here.

There was a useful discussion afterwards and most people had stories to tell of how people at work had misused email, inadvertently or otherwise. Social media, of course, goes beyond just email and surfing the internet. Indeed, controlling use of these two is probably the easiest of the challenges facing employers. IT departments can deny access to dodgy websites and it is easy to tell employees what should and should not be said from the corporate email account (although having said that it is still amazing how many people ignore this).

The real problem for employers is how to control use of Twitter, Facebook etc by employees using these media on behalf of the business. It is simple to ban all personal use ofsocial media in office hours (although query how well this would go down with your staff: social media is here to stay and how many employers would feel comfortable with banning people from using the telephone for personal use during office hours?) but employers recognising the power of social media to promote their business face a harder challenge. For instance, take the example of Vodafone UK earlier this year (which I refer to in the above presentation) when one of its employees used the corporate Vodafone account to make highly inappropriate comments, causing offence amongst the phone company’s 8,000 odd followers.

Just nominating certain employees to use social media channels isn’t going to be enough; they will need to be made fully aware of what is and is not acceptable. The main point I make in the presentation is the need for employers to act consistently towards any breaches by staff, otherwise they risk claims for unfair dismissal and/or discrimination arising.

Some of the members of the audience were surprised by my assertion that it isn’t possible to delete your Facebook account. You can deactivate your account but that doesn’t remove all the information you put on and may still be there for Facebook to access. I was wrong, apparently you can delete your account – it just isn’t very easy or quick – see this post here. I have a Facebook page (please “like it”) but I can never really get to grips with Facebook . I am going to keep on with it for the time being, but I much prefer Linked In.

I am giving the same talk again at 2.30 p.m on 25th June at the CBL. Please book directly with the CBL: 020 7332 1812; cbl@cityoflondon.gov.uk

As a law firm we can help businesses develop social media policies to fit within your wider social media strategy. If you need further help please contact me at michaelscutt@dalelangley.co.uk or phone me on 0207 464 8433.

Incidentally, The Guildhall is a superb location and well worth a visit if you haven’t been. The City Business Library is also a very valuable resource and much improved since its move from the old location in Brewers’ Garden.

Social Media in the Workplace originally appeared on Jobsworth by Michael Scutt on 16/05/2010.

Blog Off!

Michael Scutt — Fri, 12 Feb 2010 10:46:37 +0000

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.

Why Employers need a Social Media Policy

Michael Scutt — Tue, 26 Jan 2010 10:00:06 +0000

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;

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;

Do we want to use social media to promote the business?
Who in the business will be responsible for using social media? Senior management or more junior staff?
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.
How will usage be policed and what sanctions will be put in place for misuse or abuse?
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

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