Twitter, well the bits of it I frequent anyway, have been abuzz with comments on the leaked Beecroft report which proposes abolishing unfair dismissal in capability cases.  I blogged on it this morning – click here.

Amidst all the tweets announcing the news there were some interesting and amusing comments, which I’ve collected below.  Most tweets I have seen are against the plans, a few make the point that the real issue is one of management and a few support it.  This is only a brief snapshot and I didn’t set out to try and gauge public opinion, although it seems those in favour are in the minority.

Senior Lib Dem and unions condemn proposal to scrap unfair dismissal http://t.co/u9hpRGyS

26/10/2011 12:47 pm via TweetDeckReplyRetweetFavorite

@GdnPolitics

Guardian politics

Unfair dismissal law protects people who've been dismissed UNFAIRLY. Anyone wanting to scrap that law, ipso facto, supports unfairness.

26/10/2011 8:23 am via Twitter for iPhoneReplyRetweetFavorite

@garyslapper

Gary Slapper

Lawyers slam government plans to restrict unfair dismissal claims http://t.co/5HazNNaV

26/10/2011 2:27 pm via bitlyReplyRetweetFavorite

@TheLawyermag

The Lawyer

RT @paulcall1: Time to have a "protected conversation" and fire this govt without compensation? #ukemplaw

26/10/2011 1:47 pm via Twitter for iPhoneReplyRetweetFavorite

@JoEmpLawyer

Joanna Martin

Economy will only recover if I am allowed to act outside the band of reasonable responses. #ukemplaw #fail (may contain satire)

26/10/2011 10:49 am via HootSuiteReplyRetweetFavorite

@MrsMarkleham

Mrs Markleham

Govt. looking at scrapping unfair dismissal -one way of ending dispute about proposed Employment Tribunal fees. #ukemplaw

26/10/2011 10:52 am via webReplyRetweetFavorite

@kerry_underwood

Kerry Underwood

Sacking employees is like doing housework - Should unfair disimissal laws be scrapped? - http://t.co/bUTvlMHR #ukemplaw

26/10/2011 10:43 am via webReplyRetweetFavorite

@MattHuddleson

Matt Huddleson

Can everyone calm down please, this report will be scrapped #ukemplaw

26/10/2011 10:34 am via Twitter for iPhoneReplyRetweetFavorite

@deej267

Darren Smith

RT @MJCarty: Great post! #hrblogs #ukemplaw RT @FlipChartRick: Abolishing unfair dismissal will achieve nothing http://t.co/wUTTYiZF

26/10/2011 9:16 am via TweetDeckReplyRetweetFavorite

@DazNewman

Darren Newman

Instead of Compensated No Fault Dismissal we shd do more of what @Queen_UK refers to as "Motivational Bollocking" #hr #ukemplaw

26/10/2011 9:03 am via HootSuiteReplyRetweetFavorite

@ARCHONemplaw

Archon Solicitors

Thing is, although the 'compensated no fault dismissal' is fiendish and wrong - I can at least see how it would work. #ukemplaw

26/10/2011 8:27 am via TweetDeckReplyRetweetFavorite

@DazNewman

Darren Newman

RT @TarunTawakley: Thinks Mr Beecroft's report was leaked by the govt so planned increase to service requirement for UD appears a compro ...

26/10/2011 7:47 am via Twitter for iPhoneReplyRetweetFavorite

@DebbieBrooks77

Debbie Brooks

RT @LaurenREdwards: It's the Coalition's economic policies that are undermining growth, NOT unfair dismissal laws http://t.co/PxSt1VDU

26/10/2011 11:34 am via Twitter for iPhoneReplyRetweetFavorite

@martinhume

Martin Hume

Now a new report commisioned by the PM suggest scrapping unfair dismissal completely for performance issues - what next David the workhouse?

26/10/2011 11:25 am via webReplyRetweetFavorite

@Tacticks

Steve Ferns

PM wants to change rules for employer to chuck people out for being lazy. I agree, problem is define lazy- still be unfair dismissal claims

26/10/2011 7:47 am via Twitter for iPadReplyRetweetFavorite

@Lord_Sugar

Lord Sugar

"I think unproductive workers should lose their right to claim unfair dismissal!" said Roberto Mancini to Carlos Tevez

26/10/2011 12:17 pm via webReplyRetweetFavorite

@AndyRTodd

Andy Todd

I hope EM goes on unfair dismissal stuff today. Cld be both toxic for govt and divisive for Tories. As well as being rather outrageous idea.

26/10/2011 12:00 pm via TweetDeckReplyRetweetFavorite

@hopisen

Hopi Sen

@djnffc you'd be amazed what you have to do to actually get fired. Lazy scum are protected or it's 'unfair/constructive dismissal'

26/10/2011 11:39 am via Twitter for BlackBerry®ReplyRetweetFavorite

@mason_tweet

mason

Unfair dismissal rule change would boost arse-kissing, enthuse employers http://t.co/elIKAohW ( #satire #humor #lol )

26/10/2011 11:40 am via Tweet ButtonReplyRetweetFavorite

@satiredaily

The Daily Satire

Call to ease unfair dismissal law - http://t.co/AZuLSlfzIt's called 'Performance Management'. Do the job you're paid for

26/10/2011 11:36 am via BBC News iPhone AppReplyRetweetFavorite

@_purplekitty_

Kat

Unions condemn report calling for scrapping of unfair dismissal - The Guardian http://t.co/S3UKjWJs

26/10/2011 11:35 am via twitterfeedReplyRetweetFavorite

@ukworkersnews

UK Workers News

BBC reporting that changes to law unlikely. http://t.co/bqNu9KVt However, ET stats being misused again at bottom of article. #ukemplaw

26/10/2011 2:55 am via webReplyRetweetFavorite

@EmploymentBar

Jamie Anderson

Related posts:

1. Do you Twitter?
2. 40% of UK Employees Criticise Their Bosses on Facebook and Twitter

The Beecroft Report: The Twitter Response originally appeared on Jobsworth by Michael Scutt on 26/10/2011.

[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.

CTB has finally been named as the footballer taking on Twitter, following John Hemmings “outing” of him today in Parliament. You will already know the facts and history, so here are my thoughts on a case that clearly raises substantial issues affecting the issue of privacy, the constitutional settlement, the future shape of the media and, at its most extreme, the future of the nation state;

1. It is wrong that an MP should hide behind parliamentary privilege in order to breach the terms of a court injunction. It threatens the separation of powers and undermines the credibility of the courts. John Hemmings has achieved his ambition of 15 minutes of fame.
2. CTB was badly advised to “take on” the Twitterati – in so doing he has led to himself being “outed” and has garnered more adverse publicity (and derision) than if he had not sought an order for disclosure against Twitter.  I would imagine the next meeting between lawyer and client will be somewhat strained.
3. 'The public is interested' does NOT equal 'in the public interest'. Don't let the press tell you that it does.

   23/05/2011 2:17 pm via ÜberSocialReplyRetweetFavorite

   

   @AshleyConnick

   Ashley Connick
4. The print media (at one end anyway) seeks salacious stories about celebrities that have nothing to do with the public interest and everything to do with maintaining their circulation figures.
5. The print media is facing a struggle to survive – both (a) in economic terms and (b) because it can’t deliver the news quickly enough compared with online.
6. Is this but the first salvo in a war that will eventually see print media defeated, because of its inability to compete on these grounds? Twitter has a massive advantage because it is open to anyone to use and is not governed by national laws.
7. National laws cannot adequately regulate social media because the medium crosses national boundaries
8. David Cameron talks of reviewing privacy laws but to what extent can a national government shape the agenda in these circumstances – there may be a need for international regulation, but to what extent is anything meaningful likely to emerge?
9. Is the nation state in decline as a concept? Social media is proving itself to be a hugely powerful communication tool that transcends national boundaries and cannot be adequately regulated.  If national laws cannot be enforced then they become redundant and open to ridicule.  Ultimately that can lead to overthrow. Consider what has happened in the Arab world where social media is credited with the revolutions that have occurred.
10. Social media is all the rage at the moment and its potential for causing change is only just beginning to emerge.

I don’t happen to think that the future of the UK as a national entity is threatened anytime soon by the Ryan Giggs episode, but we were reminded two years ago of how interdependent our economies are, which led to the worst recession in many people’s memory and we have seen how social media destabilised the regimes in Tunisia and Egypt.  Is it so far fetched to think that the increasing globalisation of the way we do business and communicate has incredible implications for our media and our governments? The future may be in supra-national institutions that have the clout to reach agreement on these fundamental issues. For instance, the EU is considering legislation to make Facebook “forget” people who leave it, so that their photos etc do not come back to haunt them years later.

What happens to CTB in this matter is fairly irrelevant in the long term.  In the short term  he will be left with egg on his face and a large legal bill.  Even if his application for disclosure of the users who blew his cover is acceded to by Twitter, surely he will not pursue contempt of court proceedings against them? Whatever, in the long run he may have done everyone a favour by bringing this issue to a head.

I also recommend reading Steve Kuncewicz’s excellent blog post on this subject for the history and analysis.  He isn clearly right to say that Twitter users are not immune from the law, provided they can be identified and that is the million-dollar question.

No related posts.

CTB: Is it The End of the World As We Know It? originally appeared on Jobsworth by Michael Scutt on 24/05/2011.

If you make a lewd comment or joke at work, might you be in trouble? Following the case of Laura Bowater this week the answer is yes, you may be.

It doesn’t take the law any further forward than it was before but it does highlight how workplace situations can get out of hand.

Ms  Bowater was a nurse at the end of her shift at the Central Middlesex Hospital.  She was called upon by a colleague to assist in restraining a naked male patient who was having an epileptic fit.  At some point in the process she ended up astride him, near his genitals and said “‘It’s been a few months since I have been in this position with a man underneath me”.

A colleague took exception and made a complaint.  Ms Bowater was subsequently dismissed and sued for unfair dismissal. The ET held that she had been unfairly dismissed and took into account the fact that the comment was self-deprecating against herself, made at the end of a long day and at a time when she hadn’t been obliged to continue working because she was off-shift. The patient had not heard the comment and neither had any members of the public.  Furthermore she had a good record as a hard working employee.

Unfortunately the EAT to whom the Trust appealed disagreed and upheld the appeal.  The employee appealed to the Court of Appeal (CA), which agreed with the ET and upheld the finding of unfair dismissal and slapped the EAT down in criticising it for substituting its own views for what was acceptable with that of the ET, who had actually heard the evidence in the first place.

So, common sense finally prevailed.

What was clear from this case is that these decisions are case specific.  The CA’s finding does not mean that employees can make lewd comments in the workplace with impunity. Different facts will produce a different result.

It got me thinking though about what might have been the result had she, instead of uttering the comment orally, written it on Facebook or Twitter either on her way home (say on a smart-phone) or on her own PC when she got home.  Would that have led to a different result? I should say there is no suggestion (that I have read) that Ms Bowater did any such thing, of course.

Let’s assume for a minute that the employer had a properly drafted social media policy in place that dealt with social media usage by employees tweeting/updating/blogging about work.  The fact that they might be doing so in their own time, on their own hardware should not prevent an employer from taking disciplinary action if it felt that the comment had implications for the workplace.

In this hypothetical example she would have been releasing to the outside world a comment that while many would find humourous, would probably cause offence to the patient and his family if he recognised himself from the incident. Moreover, many people might also find the comment lacking amusement given that it might be taken to be an insult to a patient who was very unwell and in a vulnerable position.  Would it pass the “mum test”?  In other words, would the nurse have uttered that comment if her mother (or even the patient’s wife) been standing next to her?  Probably not would be my guess.

Therefore, if I am right on this, the employer would probably have been justified in imposing a disciplinary sanction, which might even justify gross misconduct on the basis of a breach of trust.

Why such a different result?  Crucially, the comment would not have been uttered in the heat of the moment and would also have been broadcast to a much wider audience, who would have been free to RT or pass on to their contacts.

Employers need to act with restraint and investigate these incidents thoroughly, giving full consideration to all relevant circumstances, rather than just rushing to discipline because it seems like the “right thing” to do.

Related articles

• Unfair dismissal (bbc.co.uk)
• Employee sacked for Facebook comment claims victory (geeksaresexy.net)

Related posts:

1. Facebook “Joke” Turned Sour: Why Employers Need To Take Note

Can You Joke In The Workplace? originally appeared on Jobsworth by Michael Scutt on 10/02/2011.

Hello, my name is Vince ...

As 2010 storms out in a blizzard of snow and ice and 2011 lurks just behind Father Christmas, it’s time to write my valedictory message for the year. Ambassadors may no longer write their final thoughts on the country in which they have been living before jetting off because of wikileaks, but this blog has no such fears.

What of 2010?  Were you paying attention?  I wasn’t, not all of the time anyway, but when I was awake these were the issues that caught my eye.

In February the maximum compensatory limit for unfair dismissal went down to £65,300 from  £66,000 because the cap is linked to inflation Maybe not terribly exciting but it was the first time it had happened and reflected the dire state of the economy in the previous few months.  From 1st February it bounces back to £68,400.  Other increases in the Employment Rights (Increase of Limits) Order 2010 include an increase in Statutory Redundancy Pay from £380 to £400 per week.

Twitterspat

The main event of 2010 for employment lawyers was the Equality Act, which came into force in October.  I wrote about some of the main aspects of it here, here, here. Some newspapers and business people saw it as the beginning of the end, despite the fact that for the most part it is a consolidating piece of legislation. Yes it does allow some new claims but it is hardly a harbinger of the end of civilization, although some well known celebrities thought so.   On Twitter, Duncan Bannatyne became involved in a spat with legal journalist Darren Newman on the effect  the Equality Act would have in the workplace.

Mr Bannatyne’s main gripe about “Labour’s lunatic legislation” was that it would lead to employers being sued for jokes made in poor taste by employees.  What’s his problem?  Employers have long been at risk for dodgy jokes, banter, fun, gossip, call it what you will, in the workplace. Consider the case of Nixon v Ross Coates Solicitors that was heard by the EAT earlier this year (and thus predating the Equality Act).

In that case the employer, a firm of solicitors note, did nothing to quash rumours circulating in the office about the parentage of her unborn child (it seems shehad had a liaison with a work colleague at an office party and a relationship with another work colleague).  The EAT held that the gossip amounted to sexual harassment and the employer was liable for failing to take steps to stop it, for not relocating her to another office or to pay her until she returned to the office where she was working.  So although the headlines might say the employer was penalised for not preventing office gossip, the reality is rather different.

What was truly notable about the Equality Act was the failure of the draftsman to word s.147 properly, with the effect that, arguably, it is impossible for a dispute under the Act to be settled by way of a compromise agreement.  Many lawyers discussed whether this is right or not but as I write, the issue has still not been resolved one way or the other.

It’s always easy to criticise litigants for pursuing claims – particularly if the facts are extreme.  Consider the report on the BBC Hampshire website on the 15^th of this month about Roger Kearney, the postman bringing a claim for unfair dismissal against the Royal Mail.  They sacked him after he was convicted of murder and sentenced to 15 years in jail.  I wouldn’t fancy doing that case on a “no win no fee” basis. What else could the Royal Mail have done? If someone isn’t going to turn up for work for 15 years it surely isn’t unreasonable to terminate the employment?  Perhaps the Royal mail could have redeployed him into sewing mailbags? Hmm.  I’ll await the outcome with interest but I would have thought it is a clear case of frustration of contract.

Lapdancers,  Lawyers, Facebook and Weather

The way in which employment law cases are reported always interests me.  I covered the case of Nadine Quashie back in October.  Not surprisingly, the important issue of how you distinguish an employee from a self-employed contractor garners more headlines when the Claimant is a lapdancer than a Partner in a law firm (see here). Quelle surprise.

Random thought: law firms seem to feature as parties in employment litigation quite frequently. Are law firms more prone to employment disputes than other businesses? Might this change once external investors and “the brands” come in?

For instance consider the case of Coleman v Attridge Law which finally settled this year and which extended the old Disability Discrimination Act to cover “associative discrimination”, now enshrined in the Equality Act.  Seldon v Clarkson Wright & Jakes was about age discrimination and it not being illegal to make partners retire at 65. Allen & Overy have recently been doing battle with a former employee in their Moscow office about her “Philosophy Can be Sexy” blog (result currently awaited).

Another repetitive theme has been the weather.  We started the year with snow and ended with snow.  In    between, a volcano in Iceland erupted, gushing hundreds of thousands of tons of dust into the upper    atmosphere, making it unsafe for aircraft to fly, trapping thousands of holidaymakers and businesspeople at a  stroke. As is customary at these times everyone became an expert on volcanic ash and the effect it has on    aircraft engines. The Royal Navy sailed to the rescue of tourists in Portugal, proving that there is still a need for  Britain to retain an aircraft carrier or two, but sadly Defence cutbacks spelt the end of the Harrier jump jet  earlier this month.  The employment law issue in all this is whether employers had to pay employees who were  unable to get into the office because of an “Act of God”.  I wrote about it here and here.

I spent a bit of time writing (and lecturing) about employees (mis) using Facebook and Twitter.  Vodafone got themselves in a spot of bother back in February when an employee used the Vodafone corporate Twitter account to tweet about homosexuals and beavers.  I even made a brief appearance on “Newshour” on the World Service in November discussing the American case of a Ms De Souza who had used Facebook to criticise her line manager in rather abusive terms.  Although of no direct relevance in this country it did highlight the increasing tension between what employees write about on social media platforms and the rights of their employers to do something about it.  The case will be heard in February and I will be watching with interest.

Is Blogging Dead?

The hoary old debate about the death of blogging at the hands of Twitter raised its head again recently, as it does from time to time. I seemed to spend a lot more time tweeting and blogging and love doing both.  Thank you to all my new followers – your support is much appreciated.  One thing that surprises me though and which I noticed whilst I had an enforced layoff from all social media in November through illness is how my follower numbers increased (quite significantly) when I wasn’t tweeting.  Bizarre!  Would the numbers keep going up if I did an Iain Dale or a Stephen Fry (is he tweeting now, or has he still given up, I lose track) and publicly announced I was packing blogging and tweeting in?  I think Twitter is great but, it won’t replace blogging because sometimes 140 characters just isn’t enough.

The utility of blogging (they we are, archaic use of word for the day) is demonstrated by some posts over the Wikileaks affair.  I enjoyed reading Halsbury’s Law Exchange on the implications of wikileaks for ordinary whistleblowers and Charon QC’s Lawcasts 173 and 174 on the whole Assange affair.  Head of Legal explained concisely why bail was refused to Assange in the first place and has followed the story through with further blog posts distinguishing the legal from the emotive issues.

We are seeing the fusion of traditional media with online news platforms, including blogging.  It’s got to happen because people want their news sooner (I always thought that the 1980s newspaper “Today” started by Eddie Shah should have been called “Yesterday”) and the papers all rely on heavy subsidies from wealthy owners to keep them going.  Blogging, in contrast, is cheap to run and independent.  “Traditional” journalists scorn bloggers but they should tread carefully.   LegalWeek newspaper picked up on the growth of blawging and ran an article on some of the most high profile legal bloggers out there. It extended a seasonal invitation for guest bloggers last week.  The Solicitors Journal has expanded its blog section and I was delighted to be asked to write about the Legal Services Act and other issues facing the profession.

Next week, whilst I’m digesting a few dozen mince pies I’ll cast an eye over the delights in store for us in 2011, including the arrival of Bribery Bill (he’s now made it to an Act)  the introduction of more rights for agency workers and the abolition of retirement!

Before then, I will be hoping Father Christmas gives me a weekly radio show, a visiting Professorship at a lucratively endowed American University and that he doesn’t bring with him an increase in the qualifying period required for gaining unfair dismissal rights.  I suspect I might be disappointed on all three.  Oh well, socks it is … again.

Thank you for reading my blog throughout the year, for all your kind comments and contributions which are always much appreciated and I wish you all a very Happy Christmas!

Related posts:

1. Goodbye House of Lords, Hello Supreme Court

Goodbye 2010 originally appeared on Jobsworth by Michael Scutt on 22/12/2010.

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. Why Should Bosses Want Employees’ Facebook Details?
2. Facebook “Joke” Turned Sour: Why Employers Need To Take Note
3. Facebook May be Denied to German Recruiters

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

For those of you on Twitter I am being twitterviewed tonight by 22Twts. If you haven’t come across one yet, a Twitterview is a series of (22) questions posed by Lance Godard and my responses, in real time, on Twitter.  Lance asks some really interesting and high-profile people to do his Twitterviews so I’m delighted to be asked to take part and be in such august company.

It starts at 20.00 GMT and please take a look when I will be revealing my deepest darkest secrets, or something, as well as talking about Dale Langley & Co and employment law.  I don’t think Hello or Ok magazines will be terribly interested though.

 You can follow me  = @michaelscutt  and the  twitterview can be found at @22twts and #22twts 

Related posts:

1. Read my Twitterview

Twitterview tonight originally appeared on Jobsworth by Michael Scutt on 05/11/2009.

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.

And if you do, do you find it useful?  I’ve been “twittering” recently, getting up to speed on tweeting, retweeting and have installed tweetdeck and twitterberry on various bits of kit.  Like most people, I initially thought it was a waste of time but I’m slowly becoming converted to it. I can see that it is a very useful way of passing on snippets of information about what’s going on elsewhere, and some of the tweets are very amusing.  For instance check out @charonqc and his recent tweets on swineflu and wine flu.  Stephen Fry’s tweets, on the other hand, are a little disappointing.  I came across a tweet from @ukemploymentlaw today and she was of the view that twitter was, with the exception of her, completely uninteresting.  What do you think? I haven’t had a poll for a while, so here is one to make up for the absence;

[polldaddy poll=1580355]

Related posts:

1. The Beecroft Report: The Twitter Response
2. What do you look for in a solicitor?
3. 40% of UK Employees Criticise Their Bosses on Facebook and Twitter

Do you Twitter? originally appeared on Jobsworth by Michael Scutt on 30/04/2009.