Social Media and Employment Law

I am not that old.

I remember leaving high school and heading off to University: barley turned 18 years old armed only with my 450 speed processor of a laptop, a lump in my throat and more importantly – my Nokia 3330.

The Nokia 3330 was a robust piece of equipment. It could sent three text messages in one, had interchangeable covers and again, more importantly – Snake 2.

The year was 2003. In October of that very year, a few thousand miles away in Harvard University – a student began a revolution and almost single-handedly changed the way the world communicates. That student was Mark Zuckerberg, a self-made billionaire all stemming from his invention of a rather simple computer networking site within Harvard University called Facesmash. Of course this would later become Facebook, a programme familiar around the world with almost a billion users to date.

I used the word revolution, and aptly. A revolution in the traditional sense springs memories and images of Che Guevara type figures leading a charge against oppression and corruption. As we have witnessed only too recently in the Middle East and North Africa a revolution these days tends to be leaderless. Social media: Twitter, Facebook and the rest have made such possible.

Back in 2003 if we wanted to know the football results we either listened to the classifieds on the radio or we tuned into ‘teletext’ or ‘ceefax’. Such an idea seems rather pathetic now with the invention of far superior mobile phoned, the ‘app’ and social media where information on virtually ANYTHING is available at the touch of a finger.

No one can deny the massive changes in technology in recent years and the way in which society is now closer than ever. Secrets are almost impossible to keep and rumour can spread quicker than ever. Indeed it is no secret that I often post about rangers and their current tax implications. My guess is that without social networking sites such as Facebook and Twitter the information available on the internet would not have found such mainstream success.

However, like any advancement in technology it is a double-edged sword and one that we must be careful of.

Facebook, Twitter and the like leave behind a virtual paper trail of everything that we do or say.

In 2003 I am sure many people jumped on the train or the bus after a busy day at work, pulled out their Nokia 3330 and bitched about their boss/their employer/colleagues/customers/clients etc to their friends either over text messages or over the phone.

It is not a new phenomena to bitch about work. Far from, indeed some may argue that the pub trade was built upon such as an escape for those under the pressures of work.

Nowadays, since the invention of wi-fi, apps and 3G it is easier than ever to get that work related rant off of your chest. A few misguided words typed into a status update and before you know it your employer is hauling you over the coals with disciplinary hearings and often, dismissal.

For me, employment law is a personal bugbear of mine. Not the law in itself but the rather brash way in which every single employer up and down the land feel that they have the ability to flaunt such laws.

We have all worked for an employer that is late with wage slips, paying for less hours that they should, expecting you to work without safety shoes blah blah etc. Most of us in the U.K. just get on with it. In France, I assume they would start a fire on the main street and probably get their own way. In the U.K. however, and Scotland in particular we accept things far to easily.

Anyone that has recently signed a new employers contract will have been faced with a new clause that is probably unfamiliar to them. The ‘Facebook’ clause as I call it. A declaration that you will accept any punishment from your employer for anything you say on Facebook etc that, to be quite frank, they don’t like.

At this stage and with no further comment I will leave you with Article 10 of the Human Rights Act. A wooly piece of legislation and one that appears to allow such :

(1) Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without inference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The highlighted parts seem reasonable enough, and self-explanatory but are employers now trying to take this idea too far. Do we need new specific legislation signaling out the do’s and don’t’s of social media??

In recent months we have seen social media being used to prosecute those for racial abuse and sectarian abuse to Stan Collymore and Neil Lennon respectively. Whilst I have absolutely no argument that someone should be taken to task for such actions I would like to know where the line is drawn.

Of course to call someone ‘a black bastard’ over the internet is no different to calling them it in the street. Crimes like this are long covered by law and rightfully so.

But what about a Facebook status saying: “Had a bad day, my boss is a wanker

Or “ Stupid bitch from (insert company name here). Worst client ever”

You could argue that common sense would prevail should you just so happen to have your boss on your ‘friends’ list but on a private status? Is this any different to having a glass of wine in the pub with your friend and making the same statement? Apparently not, it’s just – you have been caught.

The only way that I could explain a way of gauging what is okay to write is through the ‘invisible boss rule’. Basically, if you were having said conversation with your friend and your boss was sitting there: Would you call them a wanker? Probably not, unless you had perhaps had a few too many. The general rule is, if you wouldn’t say it to their face or more to the point, wouldn’t expect to get away with calling it to their faces Then don’t say it on the internet.

In these days of e-commerce, e-mail and instant messaging, there can hardly be a business or employer that does not have some connection to the internet. While many such employers—and it is hoped all—have policies regulating the use of e-mail and the internet for their employees, the growth of usage of social media has seemingly slipped under many such employers’ radar.

The rapid and continued expansion of social media is well-known and the rate of this expansion is startling. It is no surprise therefore that the law, practice and guidance applicable is lagging somewhat behind this phenomenon. However, the situation may be changing.

ACAS, the advisory and conciliation service, have published reports and research papers, one of which reports that the use of social networking sites costs the British economy “billions of pounds every year”, and can result in time theft, defamation, cyber-bullying and the invasion of privacy (Social media and its impact on employers and trade unions, September 2011). The potential for litigation and exposure to civil suit is accordingly clear, in particular in relation to employment law.

It was about time we heard something from ACAS on the matter and indeed we did. “Workplaces and social networking: The implications for employment relations” was released.

There are two particularly significant points that come out of the report.

Firstly, a policy on social media usage has to be considered in the context of the business’s wider policies. For instance, cyber-bullying is still bullying.  Discrimination online is still the same as discrimination offline.  Employers need to have policies to deal with these issues whether they happen in the staff canteen, the car park, or on Facebook.  The issue with cyber-bullying is that it can take place over a wider area and time frame, i.e. outside the workplace.  Why should that concern an employer though? If bullying is occurring via Facebook or other platforms and the common link between the perpetrator and victim is that they both work for the same employer, the poor old employer might be vicariously liable if it took no steps to address it once it became aware of the problem.

The report suggest employers could offer a 24/7 helpline or “help point” to guide cyber-bullied employees.    Larger employers may have this facility anyway and it is a “facility” that helps make the employer look soft and cuddly, but it won’t be an option for smaller employers who can’t afford to set one up or buy access to the helplines that exist on the market.  Neither will it enable an employer to escape liability if a claim does arise.  The only way of mitigating (not removing) that risk is for;

“Employers … to consider extending their workplace bullying policy to explicitly cover cyber-bullying both within and outside working time.” (p.29)

None of the three case studies the report looked at (HMRC, ACAS or BT) had specific, stand-alone cyber-bullying policies, instead they relied on their existing anti-bullying policies.  What this demonstrates is that employers need to have a joined-up approach to the issue.

The second stand-out issue was to do with whether employers should adopt a blanket ban on social media at work and it was timely because, according to another survey, this time carried out by Clearswift, a software security firm,the number of employers now preventing staff accessing social media in the workplace has more than doubled over the last year, mainly because of security fears.  Managers are said to be concerned about “high-profile data leaks”, although my guess is that that is a smokescreen for concerns about workers’ productivity being compromised.

The conclusions to the ACAS report  suggest that a blanket ban is pointless;

“in some of the high-profile cases of unfair dismissals for what employers believe is inappropriate  use of social networking sites, the location of the employee when posting comments is immaterial. This potentially means that any employers who believe they have protected themselves through a blanket ban on use of social media through company IT systems may be misguided. This also means that employers who do not provide IT access to some staff or do not have IT in their workplaces cannot afford to ignore the issue.”(p.30)

This is probably the greatest challenge to employers – how do you deal with bad behaviour outside the office that impacts upon the business?

The report though is that it is not all negative.  Indeed it recognises that there are positives to be drawn from social networking;

it should also be considered that social networking can have specific benefits in the employment relations context. For example, blogging can be a positive action, allowing employees to present the human face of a company, if an employer is relaxed about allowing employees to blog. More widely, one of the main benefits of social networking, according to the organisations contacted for this research, is the potential business benefits of this medium, which are not yet fully understood. Allowing employees the freedom to use social networking sites can therefore be a positive step, help to develop the workforce’s knowledge of social media, and be part of a wider strategy of digital engagement with customers” (p.31)

The comments on blogging are particularly welcome! Employers that ban employees from blogging on work topics are losing out on a free source of publicity.  To say that employees might say the wrong thing misses the point – educate them on what shouldn’t be said and let them get on with it! Businesses need to come to terms with social networking for a variety of reasons, not the least of which is that it might actually bring some benefit.

The report finishes with nine recommendations, which include the need for policies to be simple, to set out what is acceptable behaviour online, and it to be drafted in consultation with the workforce/trade union to gain legitimacy, amongst others.

Reports are great things, but what do they really mean? In truth, little.

So far, all that I can gather is scaremongering among the employees of a company that they can and indeed will be prosecuted for their actions online. It is a convenient possibility for employers to muse over such possibilities as a fear factor. In truth though, employers and all the reports under the sun do not set down the laws of the land.

In the United Kingdom we have the employment tribunal system. Most major cities hold host to a tribunal centre and resolve disputed between employer and employees every day. It is through such tribunals that we can see exactly where the land seems to lay on the issues of social networking. I will summarise the main employment cases regarding social networking so far:

 J Lerwill v Aston Villa Football Club Limited

Lerwill, Aston Villa FC’s historian, came across an article about the club that was incorrectly attributed to him. The article was being criticised on an unofficial forum. Lerwill was concerned about the effect on his reputation so he posted comments in the forum (some of which were inappropriate) denying his authorship. Aston Villa FC dismissed him. In defending its actions, the employer referred to a clause in his job description requiring him to “establish and maintain favourable contacts with the general public”. The tribunal found that the dismissal was unfair, taking into account that there was no policy and that Lerwill had no forewarning of the serious consequences of his actions.

Decision: Unfair dismissal

Whitham v Club 24 Limited t/a Ventura,

Mrs Whitham claimed she had been unfairly dismissed for posting comments on facebook.

Mrs Whitham was employed by Ventura as a “team leader” for Skoda, an important client.  Employees of the client worked alongside Mrs Whitham.

Mrs Whitham has a facebook account, on which she has around 50 friends.  Any posts she makes on the site are private, i.e. can be seen only by her friends.  In September last year, Mrs Whitham had clearly had a difficult day at work and posted a comment reflecting her irritation:

“I think I work in a nursery and I do not mean working with plants”.

Following some relatively mild online conversation, someone else referred to her colleagues as “a lot of planks”.  Mrs Whitham responded “2 true”.

The difficulty Mrs Whitham faced was that a number of her friends were also colleagues, including employees of Skoda.  Two of her colleagues reported the comments and Mrs Whitham was ultimately dismissed.  The employer felt that the comments could have a detrimental effect on its relationship with the client.

The Employment Tribunal took the view that Mrs Whitham had been unfairly dismissed, although her award was reduced by 20% in the circumstances.  The employer’s decision to dismiss was not a reasonable response.  The Tribunal pointed out that Mrs Whitham had an exemplary record and a good working relationship with her clients.  Further, the language used on facebook did not specifically refer to any person, nor was there any evidence that the client (or indeed the employer) suffered any sort of loss or embarrassment.  Finally, Mrs Whitham was suffering personal problems at the time.

This is an interesting decision and it shows that employers should not immediately rush to dismiss an employee, simply on the basis that a derogatory comment has been posted. You should consider all of the circumstances. In this particular case a warning or even a final written warning would have been appropriate rather than dismissal.

Decision: Unfair Dismissal

The next claim is from 2008. This case is slightly different as it does not involve social media per say but it does give a further idea of where the line in the sand lays and in what context:

Pay v Lancashire Probation Service

. In that case Mr. Pay was employed as a probation officer by Lancashire Probation Service and was responsible for dealing with offenders and their victims. Mr. Pay ran a website selling a variety of things including bondage and sado-masochism merchandise. The website included a picture of Mr. Pay and 2 semi-naked women. He was dismissed and, following appeals to the European Court of Human Rights, it was eventually held that the dismissal was fair on the basis that these activities were inconsistent with his duties as a probation officer and would bring the probation service into disrepute. Various arguments were made, unsuccessfully, that Mr. Pay’s right to a private life and freedom of expression had been breached.

Possibly the most definitive case that I can come up with addressing all issues is this case involving Apple computers:

Crisp v Apple Retail (UK) Ltd ET/1500258/11

In this case, one of the world’s most prominent consumer technology companies, Apple, used its policies and procedures to dismiss fairly an employee who had made several Facebook posts that it considered could damage its reputation.

In September 2009, Mr Crisp started employment with Apple Retail (UK) Ltd as a specialist at one of its London stores. His training covered:

  • how to present himself “in public, in online social networks and on blogs”;
  • the fact that any employee’s activities outside work that might affect Apple’s business interests are covered by the company’s policies and guidelines, whether or not the employee identifies him- or herself as an Apple employee;
  • the potential disciplinary consequences that might result from what an employee posts or publishes online; and
  • Apple’s policies, which state that employees should not display commentary about the company’s products, services or initiatives on personal websites, violation of which may result in disciplinary action.

Mr Crisp did not, the tribunal later found, undertake an online business conduct course that specifically dealt with the use of blogs to comment on Apple’s business or products.

Between August and September 2010, Mr Crisp had discussions with Apple about a possible transfer to the US. He was unable to transfer, because he did not have permission to work in the US and Apple would not sponsor him for a visa. The tribunal found that Mr Crisp was upset about the situation, and that it affected his relationship with Apple and work motivation.

On 27 November 2010, an employee at the store drew the attention of the store leader, Mr Cruickshank, to a number of Facebook posts made by Mr Crisp. One post stated: “Once again fuck you very much work”. A second post referred to his “jesusPhone” and complained about problems locating the Royal Courts of Justice and of having no signal. The third post stated “MobileMe [an Apple application] fucked up my time zone for the third [time] in a week and woke me up at 3am? JOY!!”.

The fourth post stated: “Tomorrow’s just another day that hopefully I will forget”. This was posted the day before Apple used the tagline “Tomorrow is another day. That you’ll never forget”, which is from a Beatles song, on its iTunes page in advance of Beatles music becoming available on the site.

Mr Cruickshank suspended Mr Crisp, who (the tribunal later found) removed the offending posts as soon as he was alerted to the issue. He attended an investigation meeting on 1 December 2010. He had not been able to access Apple’s disciplinary procedure during his suspension, and was given an hour to check through it before the meeting. He also asked for a copy to be provided during the meeting. In the meeting, Mr Crisp did not provide much information regarding his posts. He claimed that the “fuck you very much work” comment related to his Territorial Army work, and stated that his Facebook page was private. He admitted that he had made reference to Apple products.

Mr Crisp was invited to a disciplinary hearing to address the charges of bringing Apple’s name into disrepute, specifically by making comments on Facebook about Apple products and his personal feelings about work. The invitation did not include a copy of the disciplinary procedure.

The disciplinary hearing took place on 10 December 2010, and was conducted by a manager, Mr Vermeulen, who was less senior than Mr Cruickshank, the investigation officer. Mr Crisp was allowed to review the disciplinary procedure before the hearing. During the hearing, he answered the majority of the questions with “no” or “no comment”. His prepared statement alleged that three other employees had made similar Facebook posts to his, explicitly stating that they were employed by Apple. The three posts referred to:

  • performing in a burlesque show;
  • an Apple product not working properly; and
  • “jailbreaking” an Apple phone (allowing it to run third-party software).

Mr Vermeulen decided to dismiss Mr Crisp for bringing the company into disrepute, which was an example of gross misconduct in Apple’s disciplinary procedure. At the tribunal hearing, Mr Vermeulen said that he considered that Mr Crisp’s posts could potentially get a wider audience than just his Facebook “friends”: this could happen by news feeds on the page, comments posted by others and the fact that the posts could easily be passed on to others.

Although Mr Crisp had not explicitly stated in his post that he was employed by Apple, Mr Vermeulen thought that his friends would have been aware of this anyway. He considered that the posts attacked Apple’s core value of protecting its image, and that there “was a high risk that this conduct could bring the company into disrepute”. With regard to Mr Crisp’s allegations about the other employees’ behaviour, Mr Vermeulen passed the information on to other managers to deal with, but did not think that this affected his decision regarding Mr Crisp.

Mr Crisp appealed, and was finally provided with the disciplinary procedure. His appeal was conducted as a full rehearing. The appeal officer upheld the original decision to dismiss, but for a breach of Apple’s business conduct policy, which is not listed as an example of gross misconduct in the disciplinary procedure.

Mr Crisp claimed unfair dismissal and argued, among other things, that his human rights had been infringed, specifically his right to respect for private and family life and his right to freedom of expression.

The tribunal heard evidence about how other employees had been treated in similar circumstances. Another employee at the store had been dismissed for comments made on Facebook about one of Apple’s “apps”. Of the three employees whom Mr Crisp alleged had made similar posts on Facebook, two were given final written warnings. The tribunal heard that both of these employees cooperated with the disciplinary investigations and were “very apologetic” about their conduct.

The tribunal found that Apple had reasonable grounds for its belief in Mr Crisp’s misconduct, and had conducted a reasonable investigation. It had “clear and uncontradicted evidence” regarding Mr Crisp’s posts and, although it attempted to obtain more information from him, he was not prepared to provide this. The tribunal also considered that, although Apple had not provided Mr Crisp with its disciplinary procedure prior to the appeal stage, this failure was not significant enough to render the disciplinary process unfair.

The tribunal was satisfied that Mr Crisp either was or should have been aware that his actions in posting the type of comments that he did about Apple products could amount to misconduct. He had had training on these issues and, although he might have seen the issue of Facebook posts as a “grey area”, the core training specified “if in doubt, ask”. He should have been aware that these types of comment could damage Apple’s reputation and bring the company into disrepute.

The tribunal accepted that the matter was a very serious issue for Apple, “in light of the great importance of image to the company”, and that it was entitled to treat this as a gross misconduct issue. The Facebook posts could have been forwarded on very easily, and were “not truly private”. The tribunal found that Apple had not acted inconsistently with regard to the other three employees alleged to have posted adverse comments on Facebook: the company was not aware of these posts until Mr Crisp brought them to its attention, and the two employees who were given only final written warnings were treated differently because they had owned up to the misconduct and apologised.

The tribunal concluded that Apple’s decision to dismiss Mr Crisp in these circumstances “may seem harsh” but, bearing in mind the importance of image to Apple’s business, which was made clear in its policies and training, did not fall outside the range of reasonable responses.

The tribunal found that, although the appeal outcome letter was “badly expressed”, the appeal clearly upheld the original decision to dismiss, for bringing Apple into disrepute. As the tribunal was satisfied that the original decision was within the range of reasonable responses, it did not find that “any lack of clarity in the appeal decision” affected the fairness of the dismissal.

The tribunal considered whether or not Mr Crisp’s human rights had been infringed. His first argument concerned art.8 of the European Convention on Human Rights, which provides the right to respect for private and family life, home and correspondence. The tribunal did not accept Apple’s argument that Mr Crisp was “simply posting in the public domain for all purposes”. However, although Mr Crisp’s Facebook page was private in that access to posts was limited to his Facebook “friends”, the “nature of Facebook (and the internet generally) is that comments by one person can very easily be forwarded on to others”.

The tribunal found that, as an Apple employee working with technology, Mr Crisp should have been aware of these issues. This was not a case where the employer had hacked into an employee’s Facebook account, where the employee would reasonably have expected the employer not to infringe privacy in this way. Rather, the information was passed to Apple by one of Mr Crisp’s colleagues. In these circumstances, the tribunal held, Mr Crisp did not have a reasonable expectation of privacy over the information in question: he did not have a reasonable expectation that it would not be passed on by others who had access to it, so art.8 was not engaged. The tribunal held that, even if art.8 had been engaged, it would have found that Apple’s use of the information was justified and proportionate in the circumstances to protect its own rights, specifically its reputation.

The tribunal found that art.10 of the European Convention on Human Rights, the right to freedom of expression, was engaged: Mr Crisp exercised this right when posting his comments on the internet. However, the tribunal held that Apple’s conduct in limiting this right was to protect its reputation, which is one of the justifications allowed by art.10, and this was proportionate in the circumstances: “The comments made by [Mr Crisp] were not the type of comment that are particularly important to free expression (such as, for example, political opinions), and they were clearly potentially damaging to [Apple’s] reputation.”

The tribunal dismissed Mr Crisp’s claim.

From the cases above there does not seem to be a definitive line drawn on what is and what is not acceptable practice online. It would appear that context will play a large part in the matter. Personally, I object to such power being granted to a tribunal and would much rather some clear and concise legislation on the matter to protect employers and employees alike. However, in the current climate when we still refer to the marine insurance act from 1906 to cover a complex matter sch as insurance: I will not hold my breath.

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One Comment on “Social Media and Employment Law”

  1. […] I have written extensively in the past regarding the law of social media and employment matters that you can have a read at here. […]

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