Social Networking and the Employment Relationship

Facebook, YouTube and Twitter: What effect can employee use of the internet and social networking sites have on your business?

The use of social networking sites such as Facebook and Twitter on which users post blogs, photographs and comments about their daily life, and YouTube, the website on which video clips are shared, has grown dramatically during recent years.

The content of a posting submitted by an employee may have serious consequences for the organisation in which they work and employers have become increasingly alert to this and are willing to act.

Most recently, an international law firm summarily dismissed one of its senior associates who published an erotic novel online. The employee has stated that she will pursue her legal remedies.

With this is mind, what effect could employee use of the internet and social networking sites have on your business?

Health and Safety in the Workplace

In 2007 it was reported that a UK based organisation had launched an enquiry after discovering internet video clips of individuals performing stunts wearing its uniform, including “skiing” using a floor cleaner.

If an employer becomes aware of a similar situation in the workplace what should they do?

A clip containing activities such as that detailed above will provide an employer with grounds for investigating the possibility of a breach of health and safety legislation on the part of the employee.
In these circumstances investigation is highly recommended. If an employee consequently suffers personal injuries; the employer being aware of the practice and doing nothing to stop may be liable for negligence.
Whilst any award made to the employee may be reduced to reflect contributory fault, the incident may result in an investigation by the relevant health and safety authority and affect future insurance premium.

Bringing the Organisation into Disrepute?

But what about incidents which take place outside the workplace and outside working hours?

For example:

Where a video of an intoxicated employee is posted on the internet; or
Where an employee writes an internet blog detailing their personal or working life.

The first example will not raise a health and safety issue, as the incident occurs outside the workplace and working hours.

However, could an employer argue that the content of the video or blog brings the organisation into disrepute; and/or

That its content has damaged the relationship of trust and confidence between employer and employee to such an extent to warrant dismissal?

The firm who dismissed the erotic-fiction writing employee stated that her behaviour “in publishing the material she did in the professional name under which she practices, and the way that she has responded to a number of reasonable requests from us since – was unacceptable and totally at odds with the standards of behaviour that we expect from all of our people.”

The facts will undoubtedly vary from case to case, but before taking action employers will need to establish as a minimum that the acts amounted to misconduct sufficiently serious to justify summary dismissal.

That is potentially a difficult argument to make and employers should bear in mind the case of the secretary who was dismissed from her employment in Paris due to the content of her online blog:

The blog detailed the writer’s thoughts about her personal and professional life, she but maintained anonymity and never mentioned her employer by name. The employer believed the blog carried a risk of bringing the organisation into disrepute and accused the employee of writing during working hours.
The Paris labour tribunal upheld the employee’s complaint, finding the employer had acted without “real and serious cause” and awarded the employee one year’s salary plus costs.

Discrimination

Where the content of a posting (whether written, video or otherwise) is potentially discriminatory or could amount to bullying or harassment, employers should be prepared to act.

Employers are vicariously liable for the acts of their employees. Acts done by an employee can be treated as having been done by the employer, even if done without the employer’s knowledge. However an employer will not be liable if it can show that it took such steps as were reasonably practicable to prevent the employee from doing the discriminatory act.

What if an employee posts a blog on a social networking site which contains offensive comments about a colleague?

It is possible that a court or tribunal could find that the employee’s posting was sufficiently linked to their employment to render the employer vicariously liable.

Consider the hypothetical example of a blogger who posts comments about a disabled colleague, making derogatory remarks about their medical condition.

The individual about whom the comments are made may be minded to bring a claim alleging discrimination, bullying, harassment and/or resign and claim constructive dismissal. The individual may also submit a personal injury claim seeking compensation arising from psychiatric injury sustained at work.

Whilst it is of course possible the subject may never become aware of the posting, this should not be regarded by an employer as reason not to act.

An employer has a duty of care towards each of its employees, and a failure to act once aware could lead to the occurrence of further or more serious incidents.

Once an employer is on notice, the matter should be investigated and, if necessary further action taken in accordance with the statutory three step dismissal and disciplinary procedure.

Recommended Action

Consider whether access to social networking sites should be restricted or completely banned during working hours. If use is restricted, the parameters within which the employee is entitled to act should be clearly set out;
Review and update staff handbooks and contracts of employment to ensure employees are aware of internal policy and what actions may constitute gross misconduct;
Employers should always be aware of their obligations under data protection and human rights legislation and forewarn employees in advance of any monitoring which will take place and the reasons why, and ensure that such monitoring is no more intrusive than necessary.

If you would like to discuss any of the issues raised in this article, please contact Karen Moore, Associate Solicitor, Employment Department, on Belfast 028 9055 3300 or by email, karen.moore@tughans.com.