Social Media and the need for clear policies
Problems can and do arise when there is a lack of clarity for company employees between personal and business use of social media.
The figures for the use of social media are astounding. Facebook state that they have an average of 699 million active daily users worldwide, approximately 80% of them located outside Canada and the US. Eurostat, the European Commissioners Statistical Office, state that more than 50% of all internet users post messages to social media. In 2011, 38% of individuals aged between 16 and 74 participated in social networks but 80% of internet users aged 16 to 24 participated in a social network.
Unsurprisingly, companies are trying to harness the potential of such widespread use of social media. However, problems can and do arise when there is a lack of clarity for company employees between personal and business use of social media. This lack of clarity can result in reputational damage for companies and disciplinary consequences for employees.
Impact upon court proceedings
The impact of social media and the internet has spread to court proceedings. There is concern that, in trials, jurors are making inappropriate use of social media.
In a recent case, Kasim Davey posted on line his views on paedophiles, whilst acting as a juror in a trial of an alleged sex offender. He was found guilty of contempt of court and jailed for two months.
Joseph Beard, aged 29, was also found guilty of contempt of court by his use of the internet to research the case he was sitting on as a juror. He informed his fellow jurors about the number of victims of the alleged fraud. Chris Grayling, the Justice Secretary, states that there will be a new offence of jurors researching details of a case, including online, sharing details of any findings with other jurors, and disclosing details of juror deliberations.
Social media dismissal cases
There have been an increasing number of cases concerning employers taking action against employees, for what is viewed as inappropriate use of the internet and social media.
Smith v Trafford Housing Trust
In the High Court case of Smith v Trafford Housing Trust, an employee of the housing trust, in his own time and on a personal Facebook page not visible to the public, posted comments opposing gay marriage in the Christian Church. The housing trust stated that the employee broke the trust’s code of conduct as these posted views could upset or offend other employees. He was demoted on the grounds of gross misconduct. The High Court disagreed and found there was no damage to the reputation of the employer or of the employees. The comments did not constitute harassment as these comments were not related to the employer, employees or customers. The court stated that an internal policy restricting employees’ freedom to express their beliefs could not extend into every aspect of their personal or social life outside work, even when it purported to do so. The court stated that since the views were on a personal Facebook page of the employee, no reasonable person would think the employee was expressing the employer’s views in such context.
Preece v JD Wetherspoons PLC
In a previous case in 2011, the Employment Tribunal took a different approach. In Preece v JD Wetherspoons PLC an employee was found to be fairly dismissed for gross misconduct, after posting on her Facebook page inappropriate comments about two customers who had verbally abused and threatened her. This breached her employer’s email and internet policy. It was found that the comments were damaging to the employer’s reputation and constituted harassment.
Teggart v TeleTech UK Ltd
In Teggart v TeleTech UK Ltd, a case in the Northern Ireland Industrial Tribunal, an employee’s dismissal for harassment amounting to gross misconduct was found to be fair. He had posted on his Facebook page obscene comments about a colleague’s supposed promiscuity.
Whitham v Club 24 Ltd
In a 2011 case, Whitham v Club 24 Ltd, an employee posted derogatory comments about her workplace on her Facebook page after a difficult day. The comments were visible to her Facebook friends but not to other members of the public. The Employment Tribunal felt that the comments were ‘relatively minor’ and since they did not refer to a client and there was no evidence of actual or likely harm to a client relationship, the dismissal was unfair.
Outside the UK
In Germany, an appeals court stated that Facebook comments of an employee are not private or confidential and that an employer may terminate an employee’s contract because of comments or statements on Facebook. A trainee at a firm placed on-line insulting comments about his work and employer. The court ruled that the statements were insulting and that the trainee could not expect that posting such comments would not have consequences when visible on a public site.
Although the court recognised that an employee is entitled to privacy protections under Article 8 European Convention on Human Rights (EHCR) and freedom of expression (Article 10 EHCR), employees should not believe that statements on social media are always 'private', and therefore of no concern to the employer and without an impact on labour relations.
Toland v Marks & Spencer
In an Irish case in 2013, Toland v Marks & Spencer, the Employment Appeals Tribunal noted an employer of the retailer had commented on a number of posts made by a colleague about a Manager in the store. Marks & Spencer said this was a violation of its Social & Networking Policy; the employee claimed she had never seen such a policy. The Tribunal found that the employer had failed to provide evidence of a proper, graded disciplinary procedure and had ‘put adherence to company policy over a fair and open consideration of the case’. It ruled the dismissal was unfair. The employee’s compensation was reduced since she had contributed to her own dismissal by ‘careless misuse’ of social media.
The need for clear policies
As indicated above, the law is continuing to evolve and is not entirely clear, as shown by the case law. Therefore, if employers are to allow employees to use social media and the internet at work, and if debate is to be entered into, employers should have clear policies in place, making clear what is and what is not considered to be acceptable behaviour. Employers must differentiate between instances where employees might express personal views and situations where expressing views might be damaging to employers’ business, business relationships or the reputations of its customers or employees.
How to create a social media policy
There is the need to balance the right of an individual to express his own view, against behaviour that could be considered offensive or damaging. The law and the Information Commissioner's Office expect data controllers to take “reasonable steps” to ensure that any personal data put onto their websites is accurate. They must make clear what is acceptable and not acceptable in respect of such postings. They need policies in place to respond to disputes quickly and remove inaccurate data if necessary. The Information Commissioner's Office has only produced limited guidance which deals with individual use of social networking and online forums.
What is clear from recent cases is that employers must have policies which:
- are focused clear and concise;
- prohibit harassment, bullying, victimisation, defamation etc., of both individual employees and the business;
- are integrated consistently into other relevant documentation, such as IT policies;
- make employees aware of any monitoring of use;
- ensure that employees understand that confidentiality, privacy,privileged information and business secrecy must be protected;
- state that, if posting personal views, an employee should say so; and
- employees are aware of and can access easily
Employers should also consider whether specific rules or protocols are required for certain groups of employees, such as IT staff or HR.
Overall, employers should define the purposes for which the social media is being used and in particular the roles of the staff and third parties. Boundaries must be set.
It is important that these powerful new media are properly controlled and used by companies, and not allowed to be abused. The law is evolving in this area but it’s clear that courts and Tribunals will take note and act upon any social media policies in place. It is therefore even more important that such policies exist and that employees are aware of them and of the consequences of failing to adhere to them.