Social media – how to
manage employees’ use
of it and what to do when
it affects your business
negatively
Jenna Hunter
November 2012
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
11
©Whitehead Monckton 2012
©Whitehead Monckton
@Whitehead
Monckton2012
2012
A growing but relatively recent
phenomena
• treat social media misconduct in the same
way as any other misconduct
• case law developing – much of it ET level
decisions
• YouGov survey of employees - 28 % said
their employer had no social media policy
and 14% weren’t sure
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
22
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Have a policy – case law
shows it helps.
• Lerwill v Aston Villa Football Club Ltd – ET
case
• L the club historian was dismissed after
making negative comments on message
boards
• L succeeded in claiming unfair dismissal ET
noted AV Ltd had dealt with previous incident
informally and lacked guidelines indicating
dismissal could ensue
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
33
©Whitehead Monckton 2012
©Whitehead Monckton 2012
What goes in the policy?
• extent to which internet and social media
use is permitted, if at all
• if you ban usage, what about smart
phones
• reasonable usage probably most realistic
• if required to use for work, set parameters
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
44
©Whitehead Monckton 2012
©Whitehead Monckton 2012
What goes in the policy?
• consequences of breaching confidentiality on
line or damaging the employer’s reputation
• prohibition on offensive, defamatory and
discriminatory comments with disciplinary
action/dismissal being the consequence
• work email address not to be used on social
media sites (exception LinkedIn)
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
55
©Whitehead Monckton 2012
©Whitehead Monckton 2012
What goes in the policy?
• right to monitor, extent and reasons
• draw up in consultation with staff and
cross reference any other related policies
e.g. anti-bullying
• monitor, review it and most importantly
implement it
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
66
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Make sure staff receive it and
confirm they’ve read the policy
• Crisp v Apple Retail Ltd - C dismissed for
posting offensive comments on Facebook
• e.g.“once again f*** you very much work”
• and regarding an Apple app, “MobileMe
f***ed up my timezone…woke me up at
3am? JOY!!”
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
77
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Crisp v Apple Retail Ltd
• Apple as part of C’s induction had clearly told him
their expectations on social networking and
consequences of the breach
• Apple also introduced C to Apple “Credo” i.e. ways
of speaking positively about Apple and had clear
electronic communications policy
• ET rejected C’s claim for unfair dismissal citing the
steps Apple had taken to make clear the importance
they placed on their online reputation
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
88
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Don’t make it too
complex/prescriptive.
• Walters v Asda Stores Ltd – ET Case
• Asda clamped down on negative sites e.g. “I
work in Asda and it makes me want to die”
• a clear workplace policy was introduced
• then, on Facebook W said, although she was
supposed to love her customers hitting them
with a pickaxe would make her far happier
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
99
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Walters v Asda Stores Ltd –
ET Case.
• Asda’s policy stated that complaints about the
store on social networking sites would be
misconduct and gave an example, “why are
customers such w**kers”
• Asda dismissed W for gross misconduct. W
successfully claimed unfair dismissal as under its
own policy W’s comment should have been
regarded as misconduct i.e. not justifying
summary dismissal
• W’s compensation was reduced by 50%
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
10
10
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Where inappropriate behaviour is exposed
online you can legitimately use online
evidence to discipline/dismiss
• employees have tried to assert rights to
privacy and free speech, rarely successful
• neither free speech nor right to privacy are
absolute rights under the ECHR
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
11
11
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Social networking by its nature
tends to involve public statements
• Teggert v Teletech UK Ltd the employee failed in
his attempts to assert his right to privacy, the ET
found “he abandoned any right to consider his
comments being private” when he put them on
Facebook
• Gosden v Lifeline Project Ltd – although this
involved private emails, the ET found that G
forfeited any right to privacy by including the
exhortation, “it is your duty to pass this on!” in the
email
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
12
12
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Gill v SAS Ground Services
UK Ltd – ET Case
• G’s facebook page referred to her
attending London fashion week when she
on sick leave. Dismissal found to be fair.
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
13
13
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Zaver v Dorchester Hotel Ltd
• disclosure of confidential information in
breach of express provision justified fair
dismissal
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
14
14
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Derogatory comments about
work/reputational damage caused
• research by MyJobGroup.co.uk found that a
third of those surveyed said they’d posted
negative comments online about their
employer
• tribunals seem to take a harsh view of
employees who make offensive comments
online but have sympathy for those who are
merely griping about work (albeit using
derogatory language)
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
15
15
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Young v Argos Ltd
• Argos’ social media policy prohibited
offensive comments amounting to
harassment.
• an ex-employee posted a comment saying an
Argos manager “was as much use as a
chocolate teapot” Y clicked on “like”, adding
that the last year had been her worst at Argos
and was happy that the former colleague had
managed to escape
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
16
16
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Need to act reasonably s98
(4) Employment Rights Act
• Y was dismissed for gross misconduct and
succeeded in her claim for unfair dismissal
against Argos
• ET found no reasonable employer could
consider Y’s comments sufficient to justify
dismissal when really they were no more
than workplace gossip or routine criticism
of the employer
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
17
17
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Teggert v TeleTech UK Ltd
• T posted a message on his Facebook page
about a work colleague; “quick question who
in Teletech has A not tried to f***? She does
get around!” T received messages in
response
• A asked T to remove the remarks but he
responded by posting further lewd comments
and T was subsequently sacked for gross
misconduct
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
18
18
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Seriousness of alleged
misconduct is key
• in upholding T’s dismissal as fair the ET
paid particular attention to the vulgarity
and coarseness of T’s comments and his
stated intention to create “a vulgar distaste
for A”
• Teletech’s anti-harassment policy had
clearly been breached by T
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
19
19
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Harassment – Equality Act.
• liability for acts of harassment carried out by
employees in the course of their employment
gives further incentive for employers to deal
with online bullying
• in Otomewo v Carphone Warehouse Ltd – O
successfully claimed sexual orientation
harassment when O’s junior reports used O’s
iPhone to announce to all of his Facebook
contacts that O was gay (which O was not)
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
20
20
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Dixon v GB Eye Ltd
• on return from maternity leave D was concerned
about changes to her job this coincided with her
being suspended for accessing her manager’s
emails without permission
• on Facebook D posted comments describing
herself as working for “the biggest bunch of
w**kers known to the human race! Full of gingers,
fat w**kers, sleazes, brown noses and cokeheads”
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
21
21
©Whitehead Monckton 2012
©Whitehead Monckton 2012
If online comments would amount to
gross misconduct if said verbally
dismissal likely to be justified.
• D’s dismissal was found to be fair
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
22
22
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Whitham v Club 24 Ltd t/a
Ventura –
• W was a team leader for Skoda customer
services. VW which owns Skoda was an
important client of Skoda and a VW
employee worked alongside W
• after a difficult day at work W posted on her
Facebook page “I think I work in a nursery
and I do not mean working with plants”
• W was sacked for causing reputational
damage to Club 24
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
23
23
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Reputational damage – has
there been any?
• the ET found no evidence that the fairly
mild comments of a relatively junior
employee had harmed the employer’s or
VW’s reputation
• dismissal found to be unfair, but W’s
compensation reduced by 20%
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
24
24
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Factors to consider when deciding
whether dismissal appropriate
• nature and seniority of the employee’s job
• seriousness of the alleged misconduct
• terms of any social media or other relevant
policy
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
25
25
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Factors to consider when deciding
whether dismissal appropriate
•
•
•
•
disclosure of any confidential information
reputational damage
impact on the employee’s job
mitigating factors e.g. service record,
apology
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
26
26
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Assessing reputational risk
• how serious was the comment, was the
employer identifiable?
• how many people saw it, did customers or
other important parties see it?
• the number of complaints
• was confidential information disclosed
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
27
27
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Taylor v Somerfield Stores Ltd
• a store manager posted a clip on YouTube
of a colleague in a Somerfield uniform
being struck on the head with a plastic bag
filled with other plastic bags
• T apologised and removed the clip but
was dismissed anyway for gross
misconduct
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
28
28
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Reasonable investigation is
crucial
• despite T’s seniority Somerfield were found to
have acted unfairly given that the dismissing
officer had not investigated thoroughly as he had
not even watched the video clip in question and
had an inaccurate understanding of what had
actually occurred.
• Somerfield were also criticised for not having
enquired about the number of “hits” on YouTube
since this information would be key to assessing
potential reputational risk
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
29
29
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Benning v British Airways plc
• B never admitted to making offensive
comments online (he claimed it was his
brother)
• nevertheless as BA carried out a robust
investigation it’s dismissal of B was found
to be fair
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
30
30
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Closing Thoughts
• for many staff social media is so much part of their
lives they will inevitably comment on work at some
point on line
• employers need to be wary of adopting too harsh
an approach to anything which could basically be
regarded as harmless gossip/venting of frustration
• whilst dismissal in such circumstances is likely to
be unfair, warnings could be appropriate
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
31
31
©Whitehead Monckton 2012
©Whitehead Monckton 2012
Contact
Jenna Hunter
Associate
jennahunter@whitehead-monckton.co.uk
01622 698047
www.whitehead-monckton.co.uk
www.whitehead-monckton.co.uk
32
32
©Whitehead Monckton 2012
©Whitehead Monckton 2012