TPP HR SEMINAR –SOCIAL MEDIA IN THE WORKPLACE

www.wslaw.co.uk

James Lynas

Partner & Head of Public & Third Sector Employment

TPP HR SEMINARSOCIAL MEDIA 19 APRIL 2016

• Introduction

• Unfair dismissal and harassment – case law

• Contrasting case law

• Conclusions and Guidelines (1) - Monitoring social media and contents of a social media policy

• Conclusions and Guidelines (2) - Safeguards and sanctions for social media

Social Media

“The powerful medium of the internet poseschallenges for employers and employees. It is ameans of communication where the boundaries ofwhat is acceptable are not always clear”

Walters -v- Asda Stores (2008)

Introduction

• Cultural shift in communicating about work outside work

• Then ...

Introduction

Introduction

Now ...

• User levels

– UK Facebook users - 32.2 million in 2015, 33.6 million in 2017

– 1/3 of UK population log on to Facebook every day, more than will vote in next month’s election

– UK Twitter users - 15 million

– Average daily use of social media - 2 hours 13 minutes

– 32 million UK users online through a mobile device

• Facebook, Facebook Messenger, Twitter, Skype, Google Plus, Instagram, Snapchat and Tumblr

• A growing number of Employment Tribunal and High Court cases involving social media

Introduction

NO PRIVACY ON SOCIAL MEDIA

An employee has no reasonable expectation thatany information on social media is private … theright to privacy is not triggered.

Crisp -v- Apple Retail (UK) Limited (2011)

Issues of human rights are not engaged. Whenthe employee puts comments on Facebook pageshe/she abandons any right to consider thecomments as being private.

Teggart -v- TeleTech UK Limited (2012)

Introduction – Social Media

• Employees’ use of Facebook and Twitter raises a number of issues:

– Breach of confidentiality

– Defamation

– Publication of illegal material

– Bullying, harassment and discrimination

– Bringing the employer into disrepute

– Damaging relationships with clients and customers

– Potential Criminal Liability

Issues for Employers

• Statutory potential fair reason of misconduct

• Was it reasonable in all the circumstances for the employer to treat the misconduct as a sufficient reason to dismiss?

Unfair Dismissal – Statutory Test

• Fair dismissal if, at the time of the dismissal, the employer:

– Believed the employee to be guilty of misconduct

– Had reasonable grounds for believing that the employee was guilty of the misconduct

– Had carried out as much investigation as was reasonable

(British Home Stores Ltd v Burchell)

• Range of reasonable responses test (Iceland Frozen Foods Ltd v Jones)

Unfair Dismissal – Case Law

Preece v JD Wetherspoons (2011)

• Dismissal for abusive and inappropriate comments made by pub manager about customers during working hours was fair but note:

– Employer had an express policy covering the exact situation

– The entries were written over a period of time rather than in the heat of the moment

– It also had a support mechanism (hotline) in place for employees who received abuse from customers

Preece v JD Wetherspoons (2011)

• Unfair dismissal legislation is capable of applying to conduct outside of work if the conduct has an impact on the employee’s ability to do their job

Unfair Dismissal

• Dismissal of an unrepentant Apple employee who had sworn about work and Apple products on his private Facebook page outside of work was fair but note:

– Employer had placed great emphasis on protecting its image and gave intensive induction training to all new recruits

– Employer could defend arguments about inconsistent treatment

Crisp v Apple Retail (UK) Limited (2011)

• In a number of social media cases Article 8 (Right to Privacy) under ECHR has not been triggered, even where:

– The comments have been made outside of working hours

– The employee’s profile page does not mention the employer and

– The employee has set the privacy settings so that only their friends have access to their page

Right to Privacy

Game Retail Ltd v Laws (2014)

• Dismissal for offensive tweets made by risk and loss prevention investigator outside of work concerning matters that had nothing to do with work was fair but note:

– Employer’s stores were following his tweets and had been encouraged to do so.

Game Retail Ltd v Laws (2014)

• Employers vicariously liable for acts of employees that occur in the ‘course of their employment’

• Complaints regarding bullying, harassment and victimisation of employees should be dealt with even when acts are made outside of working hours

Harassment

Weeks v Everything Everywhere Ltd (2012)

Weeks v Everything Everywhere Ltd (2012)

• Dismissal for threatening posts about a work colleague was fair.

Weeks v Everything Everywhere Ltd (2012)

• Dismissal for vulgar comment about a work colleague was fair even though the colleague did not have direct access to the comment.

Teggart v TeleTech UK Limited (2011)

FACEBOOK PAGE

“.... I don’t understand why people [who] have nofaith and don’t believe in Christ would want to gethitched in church the bible is quite specific thatmarriage is for men and women ...”

Smith -v- Trafford Housing (2012)

Allegations

• Posting comments that could cause offence

• Conduct prejudicial to reputation of trust

• Serious breach of contractual Code of Conduct,also breach of Equal Opportunities policy

• Failure to take managerial responsibility

Smith (cont)

Gross misconduct

• Other employee deeply offended

• Facebook profile made it clear Smith wasManager of the Trust, linking his views to Trust

• Breached Code of Conduct and EqualOpportunities policy

• Trust Manager had failed to uphold policies

Smith (cont)

High Court

• Comments did not bring Trust into disrepute

• Although identified as Manager of Trust “noreasonable person would think Smith’s viewswere those of employer”

• “Moderate” expression of views not negativetowards Trust

• No undermining of diversity, quite the opposite

• Smith “not promoting” his beliefs, just explaininghis viewpoint

• Smith engaging in “personal/social life”

Smith (cont)

“Frank but lawful expression of religious or political views may .... cause .... upset. .... necessary price .... for freedom of speech”

Smith (cont)

• Mason dismissed for gross misconduct

• Offensive tweet posted by girlfriend

Mason -v- Huddersfield Giants (2013)

Court’s view ....

• Club just looking for excuse - “clear evidence”Club wanted Mason out

• Twitter account clearly personal and usedoutside work

• Tweet deleted as soon as possible

• No evidence tweet inextricably linked to Club

• No warning that “Mad Monday” shenaniganswould lead to disciplinary action

Mason -v- Huddersfield Giants (cont)

• “Moderate behaviour”

• Mason was repentant, deleted picture

• Bad faith by Club - looking for excuse to terminate, tweet was “smokescreen”

• Contrast to Williams -v- Leeds United

Mason -v- Huddersfield Giants (cont)

FACEBOOK PAGE

“I think I work in a nursery, and I do not meanworking with plants” .... takes a lot for thebastards to grind me down ....”

Whitham -v- Club 24 Limited (2011)

• Club 24 mishandled disciplinary and ....

• relied on breach of confidence, which it could notestablish

• Club 24 tried to argue that Facebook commentthreatened relationship with Volkswagen

Whitham (cont)

Tribunal

• Whitham not guilty of disclosing confidentialinformation

• Whitham not complaining about Volkswagen,just work and her colleagues

• No prospect of Volkswagen relationship beingthreatened – Club 24 had not even asked

• Referred to Facebook comments as “mild”

Whitham (cont)

Walters -v- Asda Stores Limited (2008)

FACEBOOK PAGE

“.... Even though I’m supposed to love ourcustomers hitting them on the head with a pic axewould make me feel far more happier heheh”

Tribunal

• Dismissal unfair

• Policy very prescriptive - comment came intocategory of “misconduct” under policy not “grossmisconduct”

• Failed to take into account ten years’ service andexemplary record

Walters (cont)

• Scottish EAT case

• SMP banned “ any action on the Internet which might embarrass or discredit BW (including defamation of third parties by posting comments on bulletin board or chat rooms)

• In 2013 S raised a grievance.

• Manager retaliated by sharing S’s facebook posts from 2011,

• Manager had known about the posts since 2012 but did nothing about them

British Waterways Board v Smith (Aug 2015)

• HR then trawled Facebook

• “chipper training today and supposed to go home after it w***** supervisor told the trainer to keep us as long as he could the f***** don’t even pay u for this s***"

• "hard to sleep when the joys of another week at work are looming NOT"

• "ha what joy, 2 sleeps til back to my beloved work NOT"

• "good old bw cant wait to see all my friends again lol"

British Waterways Board v Smith (Aug 2015)

• "going to be a long day I hate my work"

• "that’s why I hate my work for those reasons its not the work it’s the people who ruin it nasty horrible human beings“

• "why are gaffers such p*****, is there some kind of book teaching them to be total w******"

• "on standby tonight so only going to get half p***** lol"

• "im on vodka and apple juice first time ive tried it no to shabby"

British Waterways Board v Smith (Aug 2015)

• "[in response to the latter comments someone had noted the claimant was on ‘floor alert’ and asked if the claimant was going to let everyone drown, to which the claimant had responded] ‘just the c**** from Braid Square lol’."

S came to grievance mtg and was suspended.

Dismissed for GM following disciplinary hearing

ET held dismissal was UNFAIR

EAT overruled – Dismissal was FAIR – even though no action taken when first discovered.

British Waterways Board v Smith (Aug 2015)

• Must inform employees about monitoring

• Have a clear and justified policy for monitoring employees which explains:

– The reasons why the monitoring is taking place

– How the information will be used

– Who has access to the information

Monitoring

• Set out the reasons why the policy is in place

• Set out what is prohibited

• Make clear that conduct outside of work is covered by the policy

• Warn employees that breaching the policy could result in disciplinary action or even dismissal

• Forum for resolving issues at work

Social Media Policy & Training

• Include guidelines for employees about responsible use of social media:

– Keep professional and private social media accounts separate

– No mention of organisation or anything associated with the organisation

– Set privacy settings to restricted

– Treat content made as public

• Make employees aware of policy

Social Media Policy & Training

• Assess damage e.g. reputation, client connection

• Consider the post:

– is there a sufficient work connection

– is it “personal/social” or general political/religiouscomment (Smith)

– is it “moderate” or “mild”

– is it genuinely offensive/damaging

– is there a client and/or employee connection (friendsand followers)

• Treat employees consistently

• Consider range of reasonable responses

• Mitigating/aggravating factors, repentance, attitude ofemployee, employee’s disciplinary record

Sanctions

Thank You

James Lynas

Partner

Head of Public &

Third Sector Employment

Solicitors and

Parliamentary Agents

Minerva House

5 Montague Close

London

SE1 9BB

DX 156810 London Bridge 6

T. 020 7593 5000

F. 020 7593 5099

www.wslaw.co.uk