• At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
  • Kemp Little specialises in the technology and digital media sectors and provides a range of legal services that are crucial to fast-moving, innovative businesses.Our blend of sector awareness, technical excellence and responsiveness, means we are regularly ranked as a leading firm by directories such as Legal 500, Chambers and PLC Which Lawyer. Our practice areas cover a wide range of legal issues and advice.
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  • We bring our commercial understanding of digital business models, our legal expertise and our reputation for delivering high quality, cost-effective services to this dynamic sector.
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The Rise of Social Media and the Impact on the Employment Relationship

Introduction

The exponential growth of social media in recent years has changed the way employee’s network and share data, with positive and negative implications for the employer/employee relationship. Whilst social media presents employers and employees with a wealth of opportunities and benefits as a new communication channel, it also gives employees a forum enabling them to speak much more quickly and with greater impact, whether they are bad-mouthing their employers or making derogatory comments about colleagues.

So how can employers in a “socially-networked” world:

  • Manage employees’ use of social media sites (where use is excessive, inappropriate and/or leads to loss of productivity)?
  • Monitor employees’ use of social networks without infringing their privacy?
  • Protect themselves against vicarious liability for employees’ postings on social media sites?

Employees’ use of social media sites

Employees’ use of social media sites may be inappropriate if, for example, their use of these sites during working hours is excessive and affecting productivity or because the content uploaded is inappropriate. Employers may be able to discipline (or even dismiss) employees in these circumstances, but the theme that emerges from the cases to date is the importance of the employer’s response being proportionate and being based on clear guidelines.

The case of Taylor v Somerfield concerned the dismissal of an employee who had posted a video on YouTube which showed him and a colleague play-fighting with Somerfield plastic bags. He was dismissed for bringing the company into disrepute. The Tribunal found that the dismissal was unfair as there was no evidence that the video had brought the company into disrepute. The video had

Only been viewed 8 times, and 3 of those occasions were by the employee’s managers who were investigating the matter. Put another way, the employer’s response (dismissal) was disproportionate.

In contrast, the dismissal of a pub manager employee who had made inappropriate remarks on Facebook about two of the pub’s customers was found to be fair (Preece v JD Wetherspoons). The comments had been made during the manager’s working time and were in breach of Wetherspoons’ policy which provided that Wetherspoons could take disciplinary action against an employee should an employee’s postings on Facebook be found to lower the reputation of the organisation. In this case, the employer benefited from having a clear policy which it could point to.

Employees’ use of social media sites and privacy issues

Another consideration for employers is where the divide lies between its interests and an employee’s private life.

Pay v United Kingdom considered the dismissal of a probation officer because of his links to a business involved in sadomasochistic activities. Mr Pay argued that his dismissal breached his right to respect for his private life under Article 8 of the European Convention on Human Rights. In this case it was found the dismissal was justified partly because of the individual’s job, which involved working with sex offenders. However, without such a justification, it is possible that the court might have come to a different conclusion. Similar considerations will apply if an employer wants to dismiss an employer as a result of information it discovers about them online.

In a similar vein, monitoring of an employee’s use of social media sites should be proportionate to the perceived risk in order to avoid a disproportionate infringement of the employee’s privacy. The employer should also consider whether there are less invasive ways of checking that the employee is not acting inappropriately and should have a policy explaining its approach to monitoring. A full discussion of the legal considerations for an employer when undertaking monitoring are beyond the scope of this article, but please let us know if you would like further advice on this issue.

Employers also need to take care when using researching job applicants online as this is an area which could also create potential liabilities if a candidate felt that they had been discriminated against and/or pre-judged because of information viewed by a prospective employer on social media sites such as Facebook. Employers should bear in mind that such information may not all have been posted by the employee and may not necessarily be up to date or accurate.

Liability for employees’ posting on social media sites

It is established law that an employer may be liable for discriminatory acts carried out by their employees. This principle is set out in the Equality Act 2010 which provides that an act done by a person “in the course of their employment” is treated as also having been done by their employer. Case law makes clear that the phrase “in the course of employment” is construed broadly and can include acts which took place outside the workplace (for example at after work drinks).

A second potential area of liability is under the Protection from Harassment Act 1997 which provides that a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought reasonably to know amounts to harassment of the other. Although that Act was introduced to deal with stalking, employees have used it to bring claims about bullying in the workplace.

Importantly for employers, they can in principle be held liable for certain acts done by their employees, including acts of discrimination or bullying. It is not difficult, therefore, to imagine an employer being found liable for, for example, Facebook postings by an employee making discriminatory remarks about a colleague, or for cyber-bullying of one employee by another. The risk would be most significant if the postings occurred during work time, but could also arising for postings outside working hours if the only reason that the two people have a connection is because they work together.

There is also the risk that employees will use social media sites to post negative or damaging comments or air grievances about their employers online or leak confidential information online. According to a survey by the recruitment agency MyJobGroup.co.uk, 40% of UK employees admit criticising their employers on social networking sites like Facebook and Twitter.

In a recent case, the Industrial Tribunal of Brussels ordered a former employee who circulated information via LinkedIn about the strategy and policies of his former employer to pay damages of €2,500 to the company. However, in contrast, the National Labour Relations Board in the United States recently intervened in a case in which an employee was dismissed for criticising her employer on Facebook, saying the action infringed the rights of employees to discuss working conditions amongst themselves. It will be interesting to see what the UK courts decide in relation to this issue.

Employers can manage these risks to some extent by controlling employees’ use of social media sites and by having appropriate policies and procedures in place regarding acceptable usage, reinforced by appropriate training.

Managing the risks

So what should employers do in response to all of these risks? One option is to ban employees completely from accessing social media sites at work. Many employers will consider this excessive, and some may even want their employees to use certain sites for business purposes, for example tweeting about recent developments in their industry. An alternative is to put limits on employees’ use of social media sites.

Assuming that employees are given at least some access to social media sites, it is advisable to have guidelines in place as to its usage. Amongst other things, these should:

  • specify to what extent employees can access such sites, and when, including business and personal use;
  • make clear that employees should not disparage customers, suppliers, employees etc on such sites;
  • make clear that employees should not disclose confidential information or trade secrets;
  • clarify the consequences of any breach;
  • confirm that the employer reserves the right to monitor employees’ use of email and internet including access to social media sites; and
  • Make clear that employees should not hold themselves out as speaking on behalf of the company unless authorised to do so.

The advantages of introducing a social media policy are that it should make it less likely in practice that employees will act inappropriately when using social media and make it easier to take action against them if they do. Having a policy will also make it easier for the employer to argue that it should not be liable for the inappropriate actions of its employees because it has taken steps to prevent these.

Of course, it is not enough simply to have such a policy. Employers should communicate its existence to employees, implement appropriate training and take steps to monitor compliance with it and if necessary to enforce it.

Finally, all employers should carry out a risk assessment in relation to employees’ usage of social media and should review the need for guidance and policies for their staff so that the risks have been flagged to employees and rules regarding acceptable conduct have been made clear. This lays a clear path for any employer needing to take disciplinary or other action in the event of a breach.