13 December 2011

Gagging order

Many employees routinely use social media websites, both in company time and out of hours – but how can you stop them posting damaging remarks online? Employers must have a clear policy, as Gemma Taylor explains

Not long ago, it was common for employers to ban the use of company equipment for personal internet access. But nearly one in three adults now owns a smartphone, making it possible for them to chat on Facebook while managers are not looking, bypassing monitoring procedures. Evidence suggests that UK business could be losing millions of pounds in lost productivity through employees using social media sites at work.

Employers need to set realistic limits on personal social media use and be prepared to monitor compliance, including challenging employees on excessive smartphone use where appropriate.

The reputational risk
What about what employees do outside of work time? There are no binding court decisions on how far employers can control what employees say on Facebook in their own time. However, there are some employment tribunal judgments, including: Preece v Wetherspoons, where a shift manager of a pub was dismissed for insulting a customer on Facebook; Witham v Club 24, where an employee was dismissed for agreeing on Facebook that her colleagues and customers were "planks"; and Crisp v Apple Retail where an employee was dismissed for criticising the Apple brand to his Facebook friends.

Employees may complain that disciplining them for what they say to their Facebook friends in their own time is an unwarranted interference with their human rights to privacy and freedom of expression. The emerging case law, however, suggests that this interference with human rights can be justified, but only when:

• the disciplinary sanction is proportionate to the harm caused; and
  
• the company has spelled out clear rules about what employees can and cannot post online.
  

So, for example, in the Preece and the Crisp cases the tribunals decided that the employees had been dismissed fairly, because the employers could point to a clear policy about posting comments on social media sites and had sufficient evidence of actual or potential harm to warrant dismissal. By contrast, in the Witham case the employer had not pointed to a clear policy breach or shown that there was any real harm done.

Investigation challenges
Employers often hear of damaging material posted on Facebook on the grapevine. How can you investigate properly when you can't access the webpage?

Unless they are in a senior position of responsibility, employees are not generally under a duty to report another employee's, or their own, misconduct. So the employer cannot make the employee or their colleagues show the webpage, or discipline them for refusing to do so.

A colleague may be willing to show the webpage but only if he/she is not named – it is possible to discipline an employee for uploading damaging material without revealing the source. The employee is entitled to know the allegations against him, not how the material fell into the employer's hands. However, it becomes more difficult if the employee denies uploading the material. In those situations, you may need to rely on the colleague's evidence (and reveal their identity) or look for alternative evidence about the uploading of the material.

Cyber-bullying
Employees are increasingly likely to have online conversations about their work and their colleagues. This creates the scope for some of them to exclude other colleagues, or even make comments about them which could amount to sexual, racial or other harassment. In this situation, case law confirms that employers can be liable for harassment which takes place outside of work, although there are no cases yet on Facebook harassment. Even if employers can successfully escape liability for Facebook harassment, they should nevertheless be attempting to stop it, and disciplining employees who are caught doing it. Otherwise they will be in a weaker position to defend any workplace claims.

Clear policy
Given the risks, it is unsurprising that Acas recommends employers develop a social media policy. In our view, a policy should, as a minimum, spell out the rules for posting responsible content on social media sites. It could also set limits on personal use of such sites at work; ask that employees fully co-operate in investigations; and remind them that monitoring is taking place.

Some companies are going further:?despite carrying risks for the employer, they are looking up a candidate's social media profile during the recruitment process and what happens to business connections on sites such as LinkedIn when an employee leaves the business.

Gemma Taylor is a principal legal adviser at EEF: www.eef.org.uk

Author
Gemma Taylor, principal legal advisor, EEF

Supporting Information

Websites
www.eef.org.uk

Companies
EEF (Engineering Employers Federation)

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