Transcript Social Media - The HR Exchange

Thursday 8 March 2012
Will Clayton, Taylors Solicitors
Social Media – The Ugly
What does it cover ?
What is the Problem ?
Where should the line be drawn between
an employee’s private life and their
responsibilities towards their employer ?
Tackling Inappropriate Private
Behaviour
• Employers are not prevented from challenging
conduct just because it happens outside of work
so long as it could or is thought likely to affect
the employee or his work: Singh v London
Country Bus Services Ltd [1976]
Tackling Inappropriate Private Behaviour
(cont’d)
• Relevant factors:
– Potential readership ?
– Was the communication private ?
– Compatibility - with employer’s purpose / reputation or
employee’s role
– Criticisms of the employer, their employees, suppliers
or customers
Tackling Inappropriate Private
Behaviour (cont’d)
• Publicised examples:
–
–
–
–
Kirsty Cook-Bell
Virgin Atlantic cabin crew
Mr K Gosden –v- Lifeline Project (fair dismissal)
Whitham –v- Club 24 Ltd t/a Ventura (unfair dismissal
– 20% contributory fault)
– Preece –v- JD Wetherspoons plc (fair dismissal)
Inappropriate Private Behaviour Disciplinary Action & Dismissal
• Source of complaint ?
• Treating as misconduct. “Burchell” test applies:
– Reasonable belief in guilt;
– Belief based on reasonable grounds; and
– Before forming belief, the employer carried out as much of an
investigation as was reasonable in the circumstances
• Range of reasonable responses test applies to every
stage
Inappropriate Private Behaviour Disciplinary Action & Dismissal (Cont’d)
• Challenges:
– Use of private equipment e.g. Gosden
– Proving employee’s responsibility for the postings /
emails (if not admitted): e.g. Benning –v- British Airways
plc;
– Existing published disciplinary rules (VIP if asserting
gross misconduct): e.g. Gosden & Preece
– Consistency of Treatment
– Privacy
Social Media Meets
Employment Law Risk Areas
• Misconduct
• Defamation
• Brand or reputational
damage
• Breach of confidentiality
• Public controversy
• Privacy / Human Rights
• Vicarious Liability
•
•
•
•
Harassment
Bullying
Discrimination
Productivity /
Performance
• Safety
• Data Protection / RIPA /
related regulations
What is the Answer ?
• Complete ban of all forms of social media
use (in / out of work)?
• Unrestricted use?
• Something in between? Controlled use?
Social Media Policy – ACAS Research
Paper Recommendations
• “All employers should have a [written] policy on internet /
social media use…[which]...must set out clearly and
explicitly the organisation’s expectations of and
definitions of acceptable and unacceptable behaviour,
and the consequences of violation. This should be
consistent with the disciplinary procedures and crossrefer to them….”
Other ACAS recommendations
• Online conduct should not differ from off-line
conduct…..
• The policy should be drawn up in consultation with
staff / representatives…
• Policy on internet use also needs to be communicated
• Review policies on internet use / social media on a
regular basis
Policy Considerations
•
•
•
•
What kind of usage is allowed for business ?
What kind of private use is not permissible ?
Use of the business name / association with it
How will / may the employer monitor employee’s
use of social media platforms?
• Clearly communicate consequences of breaches
Policy Considerations (Cont’d)
• Data Protection: The Employment
Practices Code
• RIPA
• Telecommunications (Lawful Business
Practice) (Interception & Communication)
Regulations
Any Questions?
Taylors Solicitors
Employment Team
Will Clayton – Partner – Head of Employment
Emma Swan – Senior Associate
Leanne Eddleston - Solicitor
Rawlings House
Exchange Street
BLACKBURN
BB1 7JN
Tel: 0844 8000 263
www.taylors.com
Ninth Floor
80 Mosley Street
MANCHESTER
M2 3FX