A few words about us
“Levenes Employment provides 'outstanding' advice at a lower
cost than City firms. Audrey Onwukwe 'fights hard for her
clients'; and Victoria Willson is 'very strong, technically and
tactically'.” Legal 500 UK
“Audrey Onwukwe of Levenes Employment is recommended
for her "commercial approach" and is "always fully committed to
obtaining the best results for her clients," sources say. She
focuses on advising on complex discrimination, whistle-blowing
and outsourcing matters.” Chambers and Partners UK
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In the news
“British Airways striker sacked after ‘he threatened to poison pilot’
in YouTube rant” (Daily Mail)
“Virgin sacks 13 over Facebook ‘chav’ remarks” (Guardian)
“I made a mistake on my phone”: Police officer who posted photo
of his privates on Facebook hits out at sacking” (Mirror)
“Scots Guard removed from Royal Wedding duty for making vile
slurs against Kate Middleton” (Mail)
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“Teacher is investigated over ‘semi-naked’ Facebook photos”
(Metro)
Overview
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Employers who got it wrong
Inappropriate use
Risks to the employer
Developing a policy
Guidelines for responsible use
Business interests v employee rights
Discipline and dismissal
Employers who got it right
Employers who got it wrong
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Taylor v Somerfield Stores Ltd – videos of employee’s
misconduct at work on YouTube
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Whitham v Club 24 Ltd t/a Ventura – “relatively minor”
derogatory comments about workplace on Facebook
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Smith v Trafford Housing Trust – comments on gay
marriage on Facebook
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Novak v Phones 4U Ltd – comments on Facebook part
of continuing act for purposes of a discrimination claim
Inappropriate employee use
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Discrimination
Bullying and harassment
Breach of confidentiality
Defamation
Misrepresentation
Market abuse
Infringement of intellectual property rights
Breach of Data Protection Act
Breach of website terms of use
Risks to the employer
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Grievances or complaints, e.g. from
employees, customers, suppliers, public)
Claims for which the employer may be
vicariously liable
Damage to reputation
Loss of business
Burden on management time
Loss of productivity
Developing a policy 1
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Non-contractual
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‘Online’ misconduct as serious as ‘offline’ misconduct
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Highlight links to relevant policies/contractual terms
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Identify when personal use is affected
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Privacy settings have limitations
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Ownership, access and obligation to return
Developing a policy 2
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Set clear standards and give practical examples:
- Personal use of social media:
when, where and on whose equipment
identity of employer
email address
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- Business use of social media (if permitted):
confidential information
references
third party consent
own views
Developing a policy 3
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Monitoring or interception - Data Protection Act and
Regulation of Investigatory Powers Act
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Breaches will constitute misconduct (and in serious
cases, gross misconduct) and may result in
disciplinary action (including dismissal)
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Must seek guidance if in any doubt about use
Guidelines for responsible use 1
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Protecting the employer’s reputation
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Respecting confidential information and intellectual property
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Respecting third parties, e.g. colleagues, clients, suppliers
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Respecting privacy and data protection requirements
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Complying with all contractual obligations and the
employer’s policies
Guidelines for responsible use 2
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Complying with third party website terms and conditions in business use
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Avoiding sensitive non-work related topics, e.g. politics,
religion, race – in business use
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Limiting postings to area of knowledge/expertise
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Correcting errors promptly
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Avoiding conducting arguments online
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Reporting potential problems
Implementing the policy
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Communicate it to all staff
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Provide training on it, e.g. during induction
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Review and update it regularly
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Respond to breaches promptly, using
disciplinary procedure where appropriate
Other issues to consider
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Ownership, access and transfer of confidential data Hays Specialist Recruitment (Holdings) Ltd and
Another v Ions and Another - LinkedIn contacts
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Use of social media creates material which may be
disclosable in the event of a claim
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Some commercial insurance policies do not cover
liabilities arising from use of social media
Business interests v employee rights
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Employees have the right to:
- participate in legal off-duty, off-site conduct
- ‘blow the whistle’ on illegal activity
- various rights under the Human Rights Act
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Human Rights Act 1998
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Article 8: right to respect for private and family life
- reasonable expectation of privacy required;
interference to protect others’ rights and freedoms is
permitted, but must be proportionate
- Pay v United Kingdom - sexual activities of
probation officer working mainly with sex offenders
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Article 10: right to freedom of expression
- interference to protect reputation or rights of others,
or prevent disclosure of confidential information is
permitted, but must be proportionate
Disciplining and dismissing 1
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Follow the ACAS Code and internal procedures:
- investigate the issues and inform employee of them in
writing;
- conduct a disciplinary meeting;
- provide a written outcome and the right to appeal; and
- in the event of an appeal, conduct an appeal meeting
and provide a written outcome.
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Disciplining and dismissing 2
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Consider the context and potential audience of postings,
not only the content
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Clearly identify the relevance of any personal conduct to
the employment relationship
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Consider employee’s rights and if in doubt about where to
strike the balance, seek legal advice
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Treat employees consistently
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Keep an open mind – and a written record!
Dismissing fairly
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Misconduct is a potentially fair reason for dismissal
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Burden is on employer to satisfy the Tribunal that:
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it had a genuine belief that the misconduct occurred,
having carried out a reasonable investigation;
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dismissal was within the range of reasonable
responses; and
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it followed a fair procedure
Employers which got it right
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Crisp v Apple Retail (UK) Ltd – criticism of employer
on Facebook
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Preece v J D Wetherspoons Plc – derogatory
comments about employer’s customers on Facebook
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Benning v British Airways Plc – videos criticising and
threatening strike-breaking colleagues on YouTube
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Teggart v TeleTech UK Ltd – vulgar comments about
colleague on Facebook
How we can help you
Our services include:
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supporting you on day to day matters, e.g. dismissals,
grievances
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guiding you through major issues, e.g. restructuring,
redundancies, TUPE transfers
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drafting or improving your contracts, policies and procedures
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negotiating compromise agreements with outgoing employees
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defending claims, e.g. unfair dismissal, discrimination