Employment lawyers seem to spend a good deal of time warning of the risks posed by Facebook, Twitter and other social media perhaps without emphasising enough the opportunities presented by proper use of these immensely powerful tools. Companies large and small are adopting social media in increasingly large numbers. In research published by media agency The Group in February 2011, 45 per cent of FTSE 100 companies had an official Twitter account, 25 per cent had got an official Facebook page, 39 per cent a You Tube channel and 12 per cent had a corporate blog.
Debate will continue to rage on how corporates should harness social media. Individuals meanwhile are just doing it. 400 million Facebook users worldwide can’t be wrong. According to Facebook, 35 million users update their status everyday, 50 per cent of all active users log in every day and 3 billion photos are uploaded each month. Twitter continues to grow exponentially. Blogging, particularly in the UK, is growing enormously. Why, even lawyers are doing it now!
Social media is not going to go away. Businesses need to adapt to using these tools to promote their businesses whilst protecting themselves at the same time. Employers are in a difficult position when it comes to regulating how their employees use social media because it impacts upon issues of fundamental importance, such as freedom of expression and privacy. There are several areas that cause difficulty.
Reputational damage to an employer
This can be caused either whilst using social media at work using office equipment or in an employee’s spare time on their own equipment. The old distinction between work and home is breaking down and an employer will be entitled to take disciplinary action against an employee who posts an inappropriate tweet or a scurrilous status update on their Facebook wall if it impacts upon the employer regardless of whether it is posted at home or at work, on the employer’s equipment or the employee’s. For instance, consider the Virgin Atlantic air hostesses/stewards sacked in 2008 for using Facebook to describe their passengers as “chavs” and saying the planes were full of cockroaches. That was a clear example of reputational damage to Virgin Atlantic.
If an employee “smears” its employer in such fashion, in or outside of work, disciplinary action is likely to be justified. However, consider the situation where an employee doesn’t mention his employer at all and tries to conceal his identity, as was the case in Pay v Probation Service, from 2003, which concerned a probation officer working with vulnerable people who ran a bondage business supplying equipment and sex performances in his spare time. He disclosed the fact of his outside business but not (unsurprisingly) its nature. He appeared in a photograph on the website wearing a mask. An anonymous fax was sent to his employer alerting them to his activities. They took disciplinary action and dismissed him even though there was no concern about his workplace performance because they took the view that his private activities were incompatible with his role working with sex offenders and might bring the Probation Service into disrepute. The Employment Tribunal held there was a possibility of reputational damage, although no actual damage was ever proved. Mr Pay appealed to the Employment Appeal Tribunal and Court of Appeal and lost. He even appealed to the ECHR under Article 8 on the basis that his right to privacy had been infringed and lost there too because publishing his actions on a website had made them public. The important point from that case is that an employer seeking to rely upon reputational damage will have to demonstrate a real possibility of harm being caused. Imagine instead if Mr Pay had been a clerk in an insurance company or a worker in a call centre selling double-glazing. It would then have been much harder for his employer to demonstrate reputational damage by virtue of his private activities.
If an employer can demonstrate reputational damage it can be a disciplinary matter and the sanction imposed must be within the “range of reasonable responses”, which is the test that Employment Tribunals use when deciding whether the employer’s actions were fair or not. In many cases it may be hard for employers to distinguish between their own anger at discovering an “incident” and demonstrating reputational damage. The ACAS Code of Conduct on Discipline and Grievances requires employers to conduct a thorough investigation into allegations of misconduct and that is particularly true where misuse of social media “out of hours” is concerned. Questions to consider include what harm was done, has the employee shown contrition, has the offending article been removed and is it likely to happen again?
Breach of confidentiality
This is potentially very dangerous for a business. Not only does it encompass disclosing trade secrets and proprietary information (including any information subject to a non-disclosure agreement) but also client confidentiality or disclosures that could lead to a claim in tort for breach of confidence. Where professionals (such as solicitors) are concerned, complaints to the relevant professional body may arise.
It would not necessarily require an employee to act with malice, but could occur unintentionally; for example a salesman, delighted with his success, tweeting “just closed a big new deal with X” and thus breaching an NDA.
The common law incorporates an implied term of confidentiality into every contract of employment, and a savvy employer will require his staff to enter into a properly drafted contract of employment that expresses that implied term and expands upon it. Therefore an employee who does breach confidentiality may commit a disciplinary offence, which might even justify summary dismissal for gross misconduct.
Employers need to make employees aware of the risks posed by unthinking disclosure as well as malicious or intentional release of confidential material.
Time wasting
This is probably the main reason why employers ban Facebook and other social media platforms in the office. Facebook is accessed regularly by employees every day and that will amount to a lot of working time lost. Whilst it may be a simple and easily understood measure, it has two main drawbacks. Firstly, if personal use of social media is banned it does not present a positive image to prospective new (probably younger) employees. Would an employer feel it reasonable to say that all personal telephone calls were banned? Secondly, if personal social media usage is banned it probably means an employer might struggle to utilise social media tools for its own promotional purposes as employees may feel it unfair that they could only tweet about the business but not themselves. Social media is about communication between individuals and is not about corporates broadcasting their news to the wider world (though that is a trap that many fall into).
Third party liability
This encompasses a wide range of potential risks. In addition to the danger of unauthorised disclosure mentioned above there could also liability to copyright holders if material (photos, music, writing etc) was reproduced without the proper consents.
Another threat is from employees defaming others using the employer’s social media platforms, perhaps by defaming a competitor or rival. There is a tendency for some people to write on social media as though they were speaking their mind, the effect of which may be enhanced by the fact that the comments are made to a computer screen rather than to another person’s face. Blogging and tweeting, in particular, encourage strong opinions, and a controversial comment, especially if it involves a well known person or organisation, could get re-tweeted or copied very quickly and widely. For instance, In February 2010 Vodafone UK suffered considerable embarrassment when one of its employees used the Vodafone UK account to post homophobic and sexist comments.
Although the Vodafone incident did not give rise to litigation against the company (as far as I am aware), civil claims can arise with the real possibility at the end of the process of a claim for damages or the need to make a humiliating apology. The difficulty for management is to keep abreast of these situations: often they might be last to know by which time the damage has been done. The first step should be to get the offending comment removed as quickly as possible – often the employee will be the only one who can do that, especially if the comment was made on the employee’s own blog, Facebook account or Twitter feed. If employees are blogging about the work they do, giving opinions on developments in the sector, then they should be required to put up a disclaimer stating that their opinions do not necessarily represent those of the organisation for whom they work.
Liability to other employees
Sadly bullying occurs in many workforces, either by line manager against more junior staff or amongst peers. Cyber bullying can be particularly insidious and can take many forms from circulating hurtful messages about an employee, to inappropriate or offensive jokes, cartoons and other material, to excluding someone from the social network. Being “sent to Coventry” can happen online as well as in the real world.
Employers face the risk of an aggrieved employee claiming that their employer knew it was going on, especially if a line manager were participating in these conversations or could have been aware of them, for instance because he was linked to them as a “Friend” on Facebook. A grievance might result or, even worse, a claim for bullying and harassment under the Equality Act 2010 (particularly if any of the offending comments were motivated on grounds of sex, race, disability, age, sexual orientation, religious or philosophical belief or matrimonial status) or under the Protection from Harassment Act 1997, where it is settled law following Majrowski v Guy’s Hospital NHS Trust that an employer can be vicariously liable for the actions of its employees. Claims under the Equality Act are not limited to the statutory cap on compensation that applies to unfair dismissal claims, so there is a risk of a substantial claim being made.
Employers need to carefully consider the pros and cons of “associating” with their employees online. On the one hand doing so helps to foster a community spirit, on the other they may discover more than they might wish to, as might other employees. For instance, consider the case of Kyle Doyle in Australia who telephoned his boss to say he was unwell and then placed a status update on his Facebook wall that announced he was pulling a “sickie”, forgetting that his boss was a Facebook friend. The termination of his employment followed.
Liability to prospective employees
The anti-discrimination legislation referred to above prohibits a person being treated less favourably because of any of the listed “protected characteristics”. If an employer uses Facebook to vet job applicants, discovers from an applicant’s page that they are gay and decides not to offer employment for that reason, a claim may arise for sexual orientation discrimination if the applicant could make out a causative link between not getting the job and being rejected. On balance it may be best for an employer not to be “Facebook friends” with staff and not to scrutinise social media platforms to assist in the recruitment process to avoid the possibility of claims arising.
German legislators are considering a new law that would ban employers from using Facebook to vet job applicants. That may well spread to this country, particularly if the EU decides to legislate on the subject, as may well happen late this summer when the EU Justice Minister, Viviane Reding, unveils a package of proposals on privacy and social media platforms, which is expected to include a “right to forget” whereby an individual can demand a social network removes information about him or her from its servers.
Conclusions
How can an employer mitigate, if not remove, all these risks? There are two main ways, in my view, both inter-related. The first is education. Employees should be made aware of both the potential for social media and its risks. Too many people seem to get in front of a computer screen and belch out their innermost thoughts without considering the consequences. If employees will be using social media on behalf of their employer’s business they need to be told what is and is not acceptable usage.
Secondly, employers should have a well drafted social media policy or, at least, appropriate clauses about usage in contracts of employment. Policies should make clear what would constitute unacceptable usage.
Michael Scutt (@michaelscutt) is a Partner in Dale Langley & Co, a City-based specialist employment law firm. He is particularly interested in the issues arising from social media usage in the workplace. He also writes the “Jobsworth” and “There May be Trouble Ahead” blogs.
