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.

In the Middle East this year we have seen country after country rocked by revolution.  The popular uprisings in Tunisia and Egypt succeeded, Libya remains in the balance and Bahrain and Syria may yet succumb.  What does this have to do with social media for lawyers?  Social media networks are credited with having fanned the flames lit by Mohamed Bouazizi, the fruit and vegetable seller in Tunisia who set fire to himself triggering everything that followed.  The immense power of these networks as tools of communication is still not fully understood by most people and how they are used in the workplace is an issue that needs to be given careful consideration.

However, it does raise an issue of fundamental importance: if social media networks are now so powerful that they can destabilise entire regions, how does the poor old employer cope with them in the workplace? With great difficulty it would seem.

Employment lawyers seem to spend a good deal of time warning of the risks posed by Facebook, Twitter etc perhaps without emphasising enough the opportunities presented by proper use of these immensely powerful tools.  Whether these warnings are heeded or not is another matter but companies large and small are adopting social media in increasingly large numbers.  In research published by a media agency called The Group in February 2011, 45% of FTSE 100 companies had an official Twitter account, which was double the number a year previously.  25% had got an official Facebook page (up 20% on the previous year), 39% a You Tube channel (29% previously) and 12% had a corporate blog (which was a massive 200% up from the previous year).  Source: http://www.figarodigital.co.uk/editorial-article/ftse-social-media-use.aspx

Debate will continue to rage on how corporates should harness social media.  Individuals meanwhile are just doing it.  400 million Facebook users worldwide can’t be wrong.  Facebook states that 35 million users update their status everyday, 50% of all active users log into Facebook every day and 3 billion photos are uploaded each month.  Twitter continues to grow exponentially.  Blogging, particularly in the UK, is growing enormously.  Why, even lawyers are doing it now!

Social media is not going to go away. Business organisations need to adapt to using these tools to promote their businesses whilst protecting them at the same time Employers are in a difficult position when it comes to regulating how their employees use social media because it impacts upon issues of fundamental importance, such as freedom of expression and privacy.  The most discussed problem is employees harming their employers’ reputation through misuse of these platforms.  However, there are several scenarios that cause difficulty;

1. Reputational Damage
2. Breach of Confidentiality
3. Time Wasting
4. Incurring third party liability (eg defamation and copyright abuse)
5. Liability to other employees (e.g cyber-bullying)
6. Liability to prospective employees

1. Reputational damage to an employer

This can be caused either whilst using social media at work using office equipment or in an employee’s spare time on their own laptop. The old distinction between work and home is breaking down and an employer will be entitled to take disciplinary action against an employee who posts an inappropriate tweet or a scurrilous status update on their Facebook wall if it impacts upon the employer regardless of whether it is posted at home or at work, on the employer’s equipment or the employee’s own laptop or smartphone.  For instance, consider the Virgin Atlantic air hostesses/stewards sacked in 2008 for using Facebook to describe their passengers as “chavs” and saying the planes were full of cockroaches. That was a clear example of reputational damage to Virgin Atlantic.

If an employee “smears” its employer in such fashion, in or outside of work, disciplinary action is likely to be justified.  However, consider the situation where an employee doesn’t mention his employer at all and tries to conceal his identity, as was the case in Pay v Probation Service, from 2003, which concerned a probation officer working with vulnerable people who ran a bondage business supplying equipment and sex performances in his spare time.

 He disclosed the fact of his outside business but (not unsurprisingly) its nature. He appeared in a photograph on the website wearing a mask.  An anonymous fax was sent to his employer alerting them to his activities.  They took disciplinary action and dismissed him even though there was no concern about his workplace performance because they took the view that his private activities were incompatible with his role working with sex offenders and might bring the Probation Service into disrepute. The Employment Tribunal held there was a possibility of reputational damage, although no actual damage was ever proved. Mr Pay appealed to the Employment Appeal Tribunal and Court of Appeal and lost.  He even appealed to the ECHR under Article 8 on the basis that his right to privacy had been infringed and lost there too because his actions in publicising his actions on a website had made them public.

The important point from that case is that an employer seeking to rely upon reputational damage will have to demonstrate a real possibility of harm being caused.  Imagine instead if Mr Pay had been a clerk in an insurance company or a worker in a call centre selling double-glazing.  I think it would be much harder for the employer to demonstrate reputational damage by way of employee’s private activities.

If an employer can demonstrate reputational damage it can be a disciplinary matter and the sanction imposed must be within the “range of reasonable responses”, which is the test that Employment Tribunals use when deciding whether the employer’s actions were fair or not.  In many cases it may be hard for employers to distinguish between their own anger at discovering an “incident” and demonstrating reputational damage.  The ACAS Code of Conduct on Discipline and Grievances requires employers to conduct a thorough investigation into allegations of misconduct and that is particularly true where misuse of social media “out of hours” is concerned.  Questions to consider include “what harm was done”, “has the employee shown contrition”, “has the offending article been removed”, and “is it likely to happen again”?

2. Breach of Confidentiality

This is potentially very dangerous for a business.  Not only does it encompass disclosing trade secrets and proprietary information (including any information subject to a Non-Disclosure Agreement) but also client confidentiality or disclosures that could lead to a claim in tort for breach of confidence.  Where professionals are concerned (such as solicitors), complaints to the relevant professional body may arise.

It would not necessarily require an employee to act with malice, but could occur unintentionally.  Imagine a salesman, delighted with his success, tweeting “just closed a big new deal with X” and thus breaching an NDA.

The common law incorporates an implied term of confidentiality into every contract of employment, and a savvy employer will require his staff to enter into a properly drafted contract of employment that makes express that implied term and expands upon it.  Therefore an employee who does breach confidentiality may commit a disciplinary offence, which might even justify summary dismissal for gross misconduct.

Employers need to make employees aware of the risks posed by unthinking disclosure as well as malicious or intentional release of confidential material.

3. Time Wasting aka loss of productivity.

This is probably the main reason why employers ban Facebook and other social media platforms in the office.  The statistics I quoted above show that Facebook is accessed regularly by a lot of people every day and that will amount to a lot of working time lost. Whilst it may be a simple and easily understood measure, it has two main drawbacks.  Firstly, if personal use of social media is banned it does not present a positive image to prospective new (probably younger employees).  Would an employer feel it reasonable to say that all personal telephone calls were banned? Secondly, if personal social media usage is banned it probably means an employer might struggle to utilise social media tools for its own promotional purposes as employees may feel it unfair that they could only tweet about the business but not themselves.  Social media is about communication between individuals and is not about corporates broadcasting their news to the wider world (albeit it is a trap that many fall into).

4. Third Party Liability

This encompasses a wide range of potential risks.  In addition to the danger of unauthorised disclosure mentioned above there could also liability to copyright holders if material (photos, music, writing etc) was reproduced without the proper consents.

Another threat is from employees defaming others using the employer’s social media platforms, perhaps by defaming a competitor or rival. There is a tendency for some people to write on social media as though they were “speaking their mind”, the effect of which may be enhanced by the fact that the comments are made to a computer screen rather than to another person’s face. Blogging and tweeting, in particular, encourages strong opinions and a controversial comment, especially if it involves a well known person or organisation could get re-tweeted or copied very quickly and widely. For instance, In February 2010 Vodafone UK suffered considerable embarrassment when one of its employees used the Vodafone UK account to post homophobic and sexist comments.

Although the Vodafone incident did not give rise to litigation against the company (as far as I am aware), civil claims can arise with the real possibility at the end of the process of a claim for damages, or the need to make a humiliating apology. The difficulty for management is to keep abreast of these situations: often they might be last to know by which time the damage has been done.

The first step should be to get the offending comment removed as quickly as possible – often the employee will be the only one who can do that, especially if the comment was made on the employee’s own blog, Facebook account or twitter feed. If employees are blogging about the work they do, giving opinions on developments in the sector then they should be required to put up a disclaimer stating that their opinions do not necessarily represent those of the organisation for whom they work.

5 Liability to other employees

This is a reference to cyber-bullying.  Sadly bullying occurs in many workforces, either by line manager against more junior staff or amongst peers. Cyber bullying can be particularly insidious and can take many forms from circulating hurtful messages about an employee, to inappropriate or offensive jokes, cartoons and other material, to excluding someone from the social network.  Being “sent to Coventry” can happen online as well as in the real world.

Employers face the risk of an aggrieved employee claiming that their employer knew it was going on, especially if a line manager(s) were participating in these conversations, or could have been aware of them for instance because he was linked to them as a “Friend” on Facebook. A grievance might result or, even worse, a claim for bullying and harassment under the Equality Act 2010 (particularly if any of the offending comments are motivated on grounds of sex, race, disability, age, sexual orientation, religious or philosophical belief or matrimonial status) or under the Protection from Harassment Act 1997 where it is settled law following Majrowski v Guy’s Hospital NHS Trust that an employer can be vicariously liable for the actions of its employees. Claims under the Equality Act are not limited to the statutory cap on compensation that applies to unfair dismissal claims, so there is a risk of a substantial claim being made.

Employers need to carefully consider the pros and cons of “associating” with their employees online.  On the one hand doing so helps to foster a community spirit, on the other they may discover more than they might wish to, as might other employees.  For instance, consider the case of Kyle Doyle in Australia who telephoned his boss to say he was unwell and then placed a status update on his Facebook “wall” that announced he was pulling a “sickie”, forgetting that he was “friends” with said boss.  The termination of his employment followed.

6 Liability to prospective employees

The anti-discrimination legislation referred to above prohibits a person being treated less favourably because of any of the listed “protected characteristics”. If an employer does use Facebook to vet job applicants and decide to reject an employee because of information they found on a social media platform.  In other words if the employer discovered from the employee’s Facebook account that he or she was gay and decided not to offer employment for that reason, a claim may arise for sexual orientation discrimination if the applicant could make out a causative link  between not getting the job and being rejected. On balance it may be best for an employer not to be “Facebook friends” with staff and not to scrutinise social media platforms to assist in the recruitment process to avoid the possibility of claims arising.

German legislators are considering a new law that would ban employers from using Facebook to vet job applicants.  That may well spread to this country, particularly if the EU decides to legislate on the subject, as may well happen late this summer when the EU Justice Minister, Viviane Reding unveils a package of proposals on privacy and social media platforms, which is expected to include a “right to forget” whereby an individual can demand a social network removes information about him or her from its servers.

Conclusions

How can an employer mitigate, if not remove, all these risks?  There are two main ways, in my view, both inter-related. The first is education.  Employees should be made aware of both the potential for social media and its risks.  Too many people seem to get in front of a computer screen and belch out their innermost thoughts without considering who will read it or what consequence their words might have.  If employees will be using social media on behalf of their employer’s business they need to be told what is and is not acceptable usage.

The second tool is for employers to have a well drafted social media policy or, at least, to have appropriate clauses about usage in the contracts of employment handed out to staff. Social media policies should make clear what would constitute unacceptable usage. In a follow up article I will look in more detail at what a social media policy should include.

A similar version of this article appeared in the Internet Newsletter for Lawyers/Law 2.0

Related posts:

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

Social Media in the Workplace originally appeared on Jobsworth by Michael Scutt on 23/07/2011.

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.

Related posts:

1. Derogatory “Private” Comments on Facebook Not Unfair Dismissal
2. 40% of UK Employees Criticise Their Bosses on Facebook and Twitter
3. Facebook May be Denied to German Recruiters

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

If your employment has just ended,  not just for redundancy but for any reason, did you sign a compromise agreement? Perhaps you entered into a COT3 via ACAS to settle the dispute?

If you did there’s a good chance you will have signed up to a clause that says;

“You shall not at any time after the termination of your employment represent yourself as  being interested in or employed by or in any way connected with [name of ex-employer]”

Or something similar.  They are very common in properly drafted compromise agreements, as well as contracts of employment, and were probably first drafted to prevent any reputational damage or third party liabilities arising or being caused to the former employer by a disgruntled departee, or from claiming that they were still employed to assist a job application.

Before social network platforms developed it would probably have needed a definite act by the former employee to infringe such a clause.  However, with individuals “dipping their toes” into social media and setting up an account here or a profile there, these types of clauses can be unwittingly infringed simply by omission.

Take the obvious example: Linked In. It acts in many cases as nothing more than an online c.v (although there is far more that you can do with it). Many people, including the somewhat Luddite Mrs Jobsworth, set up a profile and then do nothing with it.  Probably in many cases they have forgotten they set the account up at all, meaning that when they do move employers the individual is potentially at risk of action from the former employer for holding themselves out as still being employed,especially if there has been any unpleasantness between the parties.

I’ve not yet had a case of this type of clause being enforced against an employee but it’s only a matter of time.  So, Jobsworth’s Helpful Hint #1 for today is check all your social networking profiles when you leave a job (for whatever reason) and update them, even if it means that your profile shows you are not working at that particular time.    That is preferable to being in breach of a compromise agreement.

Related posts:

1. 10 questions to ask if you’re made redundant
2. It's Christmas – I'm being made redundant!
3. I'm being made redundant – what do I do?

Just been made redundant? Don’t forget … originally appeared on Jobsworth by Michael Scutt on 13/04/2011.

Recently I was interviewed on Legal Network TV (part of the College of Law’s Multimedia Unit), for their guide on social media in the workplace. The programme is aimed at law firms and is split into two parts. For more details please click here.

The first part of the programme is covered by Christopher Sherliker of Silverman Sherliker solicitors (and of @London_Law_Firm fame) where he discusses why solicitors should use social media and the second part is on the issues that employers face from social media usage in and around the workplace. That’s my bit.

You can see a brief excerpt by clicking here;

You can get more information about the CPD services the College of Law provides by clicking here.

Related posts:

1. Jobsworth talks to … Brian Inkster

Jobsworth on TV originally appeared on Jobsworth by Michael Scutt on 12/04/2011.

If you’re a blogger, should what you write about online be any concern of your employer? A case before the East London ET is dealing with the vexed issue of reputational damage to an employer caused by an employee in their spare time.

Allen & Overy, the Magic Circle City law firm would say yes, having dismissed Deirdre Clarke, formerly a Senior Associate in their Moscow office and author of the Philosophy Can be Sexy blog.

The Law Society Gazette reported yesterday on the first day of her claim for unfair dismissal and sex discrimination at the East London Employment Tribunal.  The blog apparently contained photographs of her in “revealing outfits” and “what were intended to be alluring poses” (ouch) and erotic poetry.  The website revealed her real name. There’s no suggestion that she wrote the material on A&O computers or during working hours.  Well, so what?  If she felt the need to bare (nearly) all for the benefit of the blogosphere surely that is her concern and no one else’s?

That is very debatable: she was a senior employee working for a high profile law firm with blue chip clients, who might be offended enough to stop instructing A&O. Personally I don’t buy that argument; we’re living in the 21^st century not the 19th and you probably see worse things on TV.  I’d be surprised if A&O’s reputation was really damaged by the photos and her erotic writings, but others will disagree.

Where I think she went wrong is (and if it be true) is where it is alleged the characters in her blog were identifiable with her work colleagues.  Also some of the situations she described were factual and the name of a client was revealed.  Ms Clarke is said to have made derogatory comments about Russia and its people, which would have been embarrassing given that she was based in the Moscow office.  She allegedly refused to take the blog down despite being asked to do so on several occasions.

I will await the outcome with interest but, if the allegations are proven, my guess is that A&O’s dismissal will be deemed fair.  A solicitor has a strict duty of confidentiality to his/her clients and breach of that duty can be a matter of professional misconduct. That action on its own could probably justify dismissal for gross misconduct.  Writing material that could lead to work colleagues being identified, even if only within the confines of the office, is also asking for trouble.

The report does not provide Ms Clarke’s account of what she wrote and that may well cast a whole new light on the episode.  For her side of the story click here.

Whatever happens, I hope that A&O are unsuccessful in their attempt to say that the ET has no jurisdiction to hear the case because she was based in Moscow:  we could do with some guidance from the ET on the issues raised in this case.

May I also just take this opportunity to reassure readers of this blog that I shall not be taking my clothes off on this blog any time soon.

Related posts:

1. Blogging
2. Social Media in the Workplace

Blogging and the Workplace originally appeared on Jobsworth by Michael Scutt on 15/12/2010.

The Metro newspaper reported on Wednesday how a student won £10,000 in damages from a former friend.  Raymond Bryce, a law student, failed to see the funny side of chef Jeremiah Barber’s post of a paedophiliac picture on his Facebook page with the words “ Ray, you like kids and you are gay so  bet you love this picture, Ha Ha”.  Bryce sued Barber in the High Court for libel and won damages.  Barber ended up with a large money Judgment against him, a conviction for circulating indecent images of children and 150 hours’ community service. This is yet another illustration of how some people seem to take leave of their senses when using social media.   What a thing to “joke” about!

Although this incident involved two private individuals, there is a lesson to be learned here for employers.  What would have been the situation had Barber been using his employer’s computer to access Facebook, or the offending comments had been placed upon a corporate Facebook page, or twitter account or blog?  In that situation the victim would probably sue both the individual who posted the comment and the company for not taking action: it is usually going to be more likely that the company can pay rather than the employee.  It is possible in law for a company to be held liable for the actions of its employees – it’s called vicarious liability –  so, for instance, the employer of a delivery driver who knocks over and injures a pedestrian whilst on his rounds will be sued alongside the employee driver.  If that is the case for a driver, why not for an employee who posts inappropriate material whilst at work?  One answer would be for the company to argue that the employee was not acting in the course of his work duties that he was, in the phrase beloved of lawyers, “on a frolic of his own”.  The law isn’t that simple though.

Is Theo right?

The case of Lister & Ors v Hesley Hall Ltd [2001] UKHL 22 dealt with the issue of vicarious liability and when it will be appropriate to place liability upon the employer.  The House of Lords held that the employer could be held liable for the action of an employee where it was held that the employer should be held vicariously liable where the act complained of is reasonably incidental to the type of business carried on. In the later case of Dubai Aluminium Co Ltd v Salaam & ors HL 2003 IRLR 608, Lord Nicholls said that for vicarious liability to be established the act complained of

“must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment”

This should protect an employer in the Bryce – Barber type scenario above.  If an employee posts inappropriate material on his own PC in his own time that should not impact on the employer unless the company is specifically mentioned or linked in some way.  However, what about where the employee is authorised by the employer to tweet or blog or update Facebook etc to promote the business and the employee libels a third party? What about where the employee is home-based? The company may well be held liable and could end up with a nasty bill, which may not be covered by employers’ liability insurance.

What should the prudent employer do to minimise such risks?  The answer is to put in place a social media usage policy which sets out what is acceptable and what is not. This should include a prohibition on disseminating any indecent or pornographic images or text. It should also state that the employer will not tolerate any misuse of its social media networks that would breach the confidentiality of it or its clients or cause embarrassment to them.

There is no reason why that restriction should not extend to employees’ use of social media in their home life. The policy should make it clear that any breaches of the policy will be treated very seriously and may constitute a disciplinary offence leading to dismissal for gross misconduct.   This will enable an employer to argue, should the need arise, that the employee was not authorised to make the comment.

Furthermore, the employer should monitor their networks to make sure any offending articles or comments are removed as soon as possible.

Having said all the above, I don’t agree with Theo Paphitis.  Facebook and other social media tools are becoming increasingly important as marketing and communication tools.  Removing them from the workplace isn’t the answer: educating employees on correct usage is.

If you need any assistance with any of the issues raised in this piece, or would like to draw up a social media usage policy, then please do get in contact with me via michaelscutt@dalelangley.co.uk or on 0207 464 8433

Related posts:

1. 40% of UK Employees Criticise Their Bosses on Facebook and Twitter
2. Can You Joke In The Workplace?
3. Why Should Employers have a Social Media Policy?

Facebook “Joke” Turned Sour: Why Employers Need To Take Note originally appeared on Jobsworth by Michael Scutt on 30/07/2010.

According to a survey by the recruitment agency MyJobGroup.co.uk, compiled in conjunction with law firm Irwin Mitchell, 40% of UK employees admit to criticising their employers on social networking sites like Facebook and Twitter.  Furthermore most staff had little or no idea of the legal implications of what they wrote online.  Click here for the press release.

The report contains some surprisingly large numbers, for instance;

• 20% of employees admit to “lambasting” their employers online
• 53% would support disciplinary action against fellow employees sticking the online boot into the workplace
• 60% of employees would change what they wrote online if they knew their bosses would read it (and as the report points out they might given the privacy problems on Facebook)
• 70% had no idea if their employer had a social media policy in place

The press release doesn’t say by whom the survey was conducted or how many people were interviewed but, subject to those issues, the survey suggests employers need to do a great deal more work on educating their workforces.  For some reason, many people seem to think that social media is above and beyond reach of the law: it’s not.  Employers and employees both need to wake up.  For more information on the risks posed please see my Slideshare presentation on the subject.

If you’re an employer seeking help in drafting a social media usage policy for your workplace, or an employee worried about something you might have written on Facebook about your boss, please call me on 0207 464 8433 or email me at michaelscutt@dalelangley.co.uk

Related posts:

1. Facebook “Joke” Turned Sour: Why Employers Need To Take Note
2. Facebook May be Denied to German Recruiters
3. Employer was Justified in Sacking Employee for Comments on Facebook

40% of UK Employees Criticise Their Bosses on Facebook and Twitter originally appeared on Jobsworth by Michael Scutt on 22/05/2010.

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.

Related posts:

1. Social Media in the Workplace
2. Why Employers need a Social Media Policy
3. Why Should Employers have a Social Media Policy?

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