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. Why Employers need a Social Media Policy
3. Old News Rehashed:Employers Warned to Monitor Social Media Usage at Work

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. Social Media in the Workplace
3. Old News Rehashed:Employers Warned to Monitor Social Media Usage at Work

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;

Related posts:

1. Subscribe by Email
2. 40% of UK Employees Criticise Their Bosses on Facebook and Twitter
3. What do you look for in a solicitor?

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