Social media in the workplace James Lynas

1. TPP HR SEMINAR –
SOCIAL MEDIA IN THE WORKPLACE

2. www.wslaw.co.uk
James Lynas
Partner & Head of Public & Third Sector Employment
TPP HR SEMINAR
SOCIAL MEDIA
19 APRIL 2016

3. • 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

4. “The powerful medium of the internet poses
challenges for employers and employees. It is a
means of communication where the boundaries of
what is acceptable are not always clear”
Walters -v- Asda Stores (2008)
Introduction

5. • Cultural shift in communicating about work
outside work
• Then ...
Introduction

6. Introduction
Now ...

7. • 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

8. NO PRIVACY ON SOCIAL MEDIA
An employee has no reasonable expectation that
any information on social media is private … the
right to privacy is not triggered.
Crisp -v- Apple Retail (UK) Limited (2011)
Issues of human rights are not engaged. When
the employee puts comments on Facebook pages
he/she abandons any right to consider the
comments as being private.
Teggart -v- TeleTech UK Limited (2012)
Introduction – Social Media

9. • 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

10. • 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

11. • 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

12. Preece v JD Wetherspoons (2011)

13. • 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)

14. • 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

15. • 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)

16. • 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

17. Game Retail Ltd v Laws (2014)

18. • 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)

19. • 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

20. Weeks v Everything Everywhere Ltd (2012)

21. Weeks v Everything Everywhere Ltd (2012)

22. • Dismissal for threatening posts about a work
colleague was fair.
Weeks v Everything Everywhere Ltd (2012)

23. • 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)

24. FACEBOOK PAGE
“.... I don’t understand why people [who] have no
faith and don’t believe in Christ would want to get
hitched in church the bible is quite specific that
marriage is for men and women ...”
Smith -v- Trafford Housing (2012)

25. 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)

26. Gross misconduct
• Other employee deeply offended
• Facebook profile made it clear Smith was
Manager of the Trust, linking his views to Trust
• Breached Code of Conduct and Equal
Opportunities policy
• Trust Manager had failed to uphold policies
Smith (cont)

27. High Court
• Comments did not bring Trust into disrepute
• Although identified as Manager of Trust “no
reasonable person would think Smith’s views
were those of employer”
• “Moderate” expression of views not negative
towards Trust
• No undermining of diversity, quite the opposite
• Smith “not promoting” his beliefs, just explaining
his viewpoint
• Smith engaging in “personal/social life”
Smith (cont)

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

29. • Mason dismissed for gross misconduct
• Offensive tweet posted by girlfriend
Mason -v- Huddersfield Giants (2013)

30. Court’s view ....
• Club just looking for excuse - “clear evidence”
Club wanted Mason out
• Twitter account clearly personal and used
outside work
• Tweet deleted as soon as possible
• No evidence tweet inextricably linked to Club
• No warning that “Mad Monday” shenanigans
would lead to disciplinary action
Mason -v- Huddersfield Giants (cont)

31. • “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)

32. FACEBOOK PAGE
“I think I work in a nursery, and I do not mean
working with plants” .... takes a lot for the
bastards to grind me down ....”
Whitham -v- Club 24 Limited (2011)

33. • Club 24 mishandled disciplinary and ....
• relied on breach of confidence, which it could not
establish
• Club 24 tried to argue that Facebook comment
threatened relationship with Volkswagen
Whitham (cont)

34. Tribunal
• Whitham not guilty of disclosing confidential
information
• Whitham not complaining about Volkswagen,
just work and her colleagues
• No prospect of Volkswagen relationship being
threatened – Club 24 had not even asked
• Referred to Facebook comments as “mild”
Whitham (cont)

35. Walters -v- Asda Stores Limited (2008)
FACEBOOK PAGE
“.... Even though I’m supposed to love our
customers hitting them on the head with a pic axe
would make me feel far more happier heheh”

36. Tribunal
• Dismissal unfair
• Policy very prescriptive - comment came into
category of “misconduct” under policy not “gross
misconduct”
• Failed to take into account ten years’ service and
exemplary record
Walters (cont)

37. • 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)

38. • 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)

39. • "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)

40. • "[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)

41. • 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

42. • 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

43. • 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

44. • Assess damage e.g. reputation, client connection
• Consider the post:
– is there a sufficient work connection
– is it “personal/social” or general political/religious
comment (Smith)
– is it “moderate” or “mild”
– is it genuinely offensive/damaging
– is there a client and/or employee connection (friends
and followers)
• Treat employees consistently
• Consider range of reasonable responses
• Mitigating/aggravating factors, repentance, attitude of
employee, employee’s disciplinary record
Sanctions

45. 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