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1 ©Whitehead Monckton 2012 1 Social media – how to manage employees’ use of it and what to do when it affects your business negatively Jenna Hunter November 2012 @Whitehead Monckton 2012 1

2 ©Whitehead Monckton 2012 2 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 2

3 ©Whitehead Monckton 2012 3 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 3

4 ©Whitehead Monckton 2012 4 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 4

5 ©Whitehead Monckton 2012 5 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) 5

6 ©Whitehead Monckton 2012 6 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 6

7 ©Whitehead Monckton 2012 7 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!!” 7

8 ©Whitehead Monckton 2012 8 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 8

9 ©Whitehead Monckton 2012 9 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 9

10 ©Whitehead Monckton 2012 10 ©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% 10

11 ©Whitehead Monckton 2012 11 ©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 11

12 ©Whitehead Monckton 2012 12 ©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 12

13 ©Whitehead Monckton 2012 13 ©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. 13

14 ©Whitehead Monckton 2012 14 ©Whitehead Monckton 2012 Zaver v Dorchester Hotel Ltd disclosure of confidential information in breach of express provision justified fair dismissal 14

15 ©Whitehead Monckton 2012 15 ©Whitehead Monckton 2012 Derogatory comments about work/reputational damage caused research by 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) 15

16 ©Whitehead Monckton 2012 16 ©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 16

17 ©Whitehead Monckton 2012 17 ©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 17

18 ©Whitehead Monckton 2012 18 ©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 18

19 ©Whitehead Monckton 2012 19 ©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 19

20 ©Whitehead Monckton 2012 20 ©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) 20

21 ©Whitehead Monckton 2012 21 ©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” 21

22 ©Whitehead Monckton 2012 22 ©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 22

23 ©Whitehead Monckton 2012 23 ©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 23

24 ©Whitehead Monckton 2012 24 ©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% 24

25 ©Whitehead Monckton 2012 25 ©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 25

26 ©Whitehead Monckton 2012 26 ©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 26

27 ©Whitehead Monckton 2012 27 ©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 27

28 ©Whitehead Monckton 2012 28 ©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 28

29 ©Whitehead Monckton 2012 29 ©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 29

30 ©Whitehead Monckton 2012 30 ©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 30

31 ©Whitehead Monckton 2012 31 ©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 31

32 ©Whitehead Monckton 2012 32 ©Whitehead Monckton 2012 Contact Jenna Hunter Associate 01622 698047 32

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