employment law - social media in the workplace
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What is social media, and why is it relevant to youTRANSCRIPT
Social Media in the Workplace
Tom Stenner-EvansSolicitor
http://www.michelmores.com/blog/employment/#EmpLaw
Date: 8 November 2012
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Social Media in the Workplace
1. What is social media, and why is it relevant to you?
2. Social Media and Employment Law
3. Business Protection
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What is Social Media?
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What is Social Media? ‘Internet based content where the
content of the media is controlled or added by the users’
• Facebook• Twitter• LinkedIn• Google+• Myspace• Bebo• Flickr• Wikipedia• YouTube
…..and many many more!
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• Social network site• Personal pages – various levels of privacy• Common interest groups and corporate pages• Communities of friends and contacts to whom
one posts information or comments• Potentially 1 billion users by 2013
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• Micro blogging site where 140 characters of text may be posted
• Default settings – ‘tweets’ are open to all to see• Tweets are published and can be re-tweeted by
‘followers’. Onward publication without control• ‘C**p! Robin Hood airport is closed. You’ve got a week
and a bit to get your s**t together otherwise I am blowing the airport sky high!!’ (prison sentence was overturned on appeal)
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• Business networking site• Individual profile with connections to
others – creates a network of contacts• Ability to post information to contacts and
groups. Enables users to establish direct contact with potential contacts
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Why is Social Media relevant to you?
• Twitter started in 2006 – now has an estimated 200 million members – 65 million tweets a day
• LinkedIn reportedly has over 100 million registered users – 2 new members a second!
• Staff use of Social Media sites whilst at work is costing UK businesses £1.38bn every year
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Social Media and Employment Law
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Social Media and Employment Law
• The risks of Social Media use by staff -
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• Most cases are not so clear cut –
Teggart v Teletech UK Ltd Claimant made comments on Facebook regarding a female
colleague’s sexual promiscuity. Named Teletech in the posts Harassment on Facebook sufficient to amount to gross
misconduct. No defence under Article 8 ECHR (right to a private life)
Preece v JD Wetherspoons Plc Claimant was subject to abuse by rude customers, and then
received abusive phone calls. Posted negative comments about the customers on Facebook which were seen by the customer’s daughter and reported
Claimant was dismissed for gross misconduct ET held the dismissal to be fair. NOTE – employer’s policy was
very clear on social media use
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Pay v Lancashire Probation Service Claimant worked with sex offenders and victims and had put
photographs online of him participating in BDSM Dismissed for SOSR – activities would potentially bring the
service into disrepute. No protection under Article 8 (right to a private life) as the pictures were posted online
X v Y Claimant worked as a personal development officer for a charity Was arrested and cautioned by the police for engaging in a
consensual sexual act with another man in a public toilet Claimant was dismissed. EAT held that a dismissal for bringing
the service into disrepute was fair in the circumstances. Claimant had committed a criminal offence and shown an inappropriate lack of self control and serious lack of judgment
No defence under Article 8. Interference under Article 10 (freedom of expression) but ‘necessary in a democratic society’ Article 14 (prohibition of discrimination) not relevant
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Crisp v Apple Retail Apple shop employee was critical about Apple products on Facebook Employer was informed and the employee removed the comments.
Dismissal held to be fair – Apple’s induction and policies embraced the emphasis on company image
Taylor v Somerfield Stores Ltd 20 second clip posted on YouTube showing a person in uniform being hit
with a plastic bag Dismissing manager did not view the clip or know that it only had 8 hits, 3
of which were by management! ET held the dismissal to be unfair
Gosden v Lifeline Project Ltd Claimant sent a sexist and racist email to a former colleague which
entered the HMPS systems, marked ‘you have to pass this on’. Dismissal held to be fair – sending the email to the employer’s biggest client could easily damage reputation
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But not all claims have failed -
Stephens v Halfords PLC Claimant created a Facebook page in protest to Halfords’ proposed
change in working hours, in breach of Halfords’ Social Media policy Removed the page when the policy was drawn to his attention, but was
still dismissed Held by the ET to be unfair
Whitham v Club 24 t/a Ventura ‘Exemplary’ employee posted mild derogatory comments on Facebook –
‘I work in a nursery, and not with plants’ Dismissed – comments could damage relationship with VW Dismissal held by ET to be unfair
Flexman v BG Group plc HR Executive ticked the box on LinkedIn confirming he was ‘interested in
career opportunities’ Disciplined when he refused to remove it and resigned Brought a constructive dismissal claim – and succeeded
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Business Protection• Ownership issues
– Copyright/Database Rights – ownership of a database is determined at the time of creation
– ‘In the course of employment’ – ownership vests in the employer e.g. Outlook contacts, client/supplier lists
– Sophisticated CRM systems are key– Consider contractual provisions– Keep personal databases separate
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LinkedIn• Work contacts, but stored online. Contrast to
Outlook or client databases• Ownership?
– ‘You own the information you provide LinkedIn under this Agreement, and may request its deletion at any time, unless you have shared information or content with others and they have not deleted it, or it was copied or stored by other users’
– Doesn’t deal with connections!
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LinkedIn /cont…
• Contractual and Post-Termination considerations– Restrictive covenants governing social media use?– Deletion of contacts?– Compromise Agreement wording re: social media?– Change of LinkedIn status – solicitation?!
Towry EJ Ltd v Bennett and Others ‘Material Element of persuasion’ required for
solicitation
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Policy Considerations• Cases emphasise the need for a communicated policy• Consultation is important• Include use of smart phones and tablets – not just
company hardware• Link to existing discrimination, harassment and
whistleblowing policies• Clear disciplinary sanctions for breach• Express prohibitions on posting confidential
information……
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