Social Media in the Workplace Jane Smith & Rebecca - PowerPoint PPT Presentation

Alexander Lloyd Social Media in the Workplace Jane Smith & Rebecca Thornley-Gibson Employment team, asb law LLP 22 June 2012 www.asb-law.com/employment

What is it? - Types of social media  Blog  Twitter  Social and business networking sites – Facebook, LinkedIn, MySpace  Digital media sharing sites  WIKI  MMPORG  Astroturfing www.asb-law.com/employment

Some statistics…  Does your business use social networking for business purposes? 75% - Yes 24% - No  Are all, some or no employees permitted to access social networking sites for non-business use? 48% - All employees, 25% - No employees 27% - Some employees  Do you actively block access to social networking sites? 70% - No 30% - Yes www.asb-law.com/employment

Some statistics…  Do you have social networking policies? 55% - Yes 45% - No  Do your policies cover social networking inside and outside of work? 16.5% - Just at work 44% - At work and outside of work 39.5% - No policy  Has your business had to take disciplinary action over misuse of social networking? 31% - Yes 69% - No www.asb-law.com/employment

Should employers allow use at work? Pros  Treat your staff like adults  May be needed if creative / IT based sector / role dependent  Expectations from third parties  Guidelines can be established www.asb-law.com/employment

Should employers allow use at work? Cons  Loss of productivity  Discrimination / harassment from postings  Confidential information breaches  Loss of reputation/defamation  Privacy and data protection headaches  Illegal content  Excessive restrictions = non compliance / undermine morale? www.asb-law.com/employment

Employer options on use  Outright ban  Fair Use Policy  Block sites  Smartphone use  Tolerance on use outside normal working hours  Time limits  Total freedom save for offensive/unsafe sites  Partial permissions (LinkedIn ok, Facebook banned)  Business use permitted but private use not allowed www.asb-law.com/employment

What does the law say? The legal framework:  Data Protection Act 1998 – employee friendly  Right to Privacy – Human Rights Act 1998 – employee friendly  Regulatory of Investigatory Powers Act 2000 (RIPA) – employer friendly  Lawful Business Practice Regulations 2000 – employer friendly www.asb-law.com/employment

Checklist for use of social media  Have a carefully worded social media policy – applicable to your business  Treat cyber-conduct in the same way as normal conduct  Ensure employees know the consequences  Consider social media training where heavily used within the business and update regularly www.asb-law.com/employment

Checklist cont …  Amend bullying/harassment policies to cover cyber conduct  Ensure LinkedIn profiles are consistent with your brand  Ensure employees know social media may be monitored  Ensure employees know what they do out of work also has an impact on the business www.asb-law.com/employment

Checklist cont …  Make it clear that employees should have no expectation of privacy when they use your Internet/Social Media and Company SmartPhones  Be very wary about using social media to sift candidates during the recruitment process  Make sure your policy details what will happen when someone leaves – ie take down the employee’s LinkedIn site? www.asb-law.com/employment

The Cases so far…….  Conduct outside the workplace  Cyber bullying, harassment / discrimination  Facebook postings  LinkedIn www.asb-law.com/employment

Pay v UK (2009)  Pay was a probation officer working with sex offenders  Employer discovered he was involved in various S&M activities and photos of various acts involving him  Probation Service considered that it had a responsibility to the public to maintain confidence in the integrity of probation officers and public knowledge of Pay’s activities would damage its reputation  It was held by the court that interference with his right to privacy and freedom of expression was justified to protect reputation of the employer. www.asb-law.com/employment

Gosden v Lifeline Project 2010  Lifeline is a charity assigning employees to work with drug users in prison and HM Prison Service was one of its biggest clients  Mr Gosden was employed by Lifeline and from his home PC and outside working hours he sent a racist and sexist email headed “It is your duty to pass this on” to the home PC of an employee of HMPS. The HMPS employee then forwarded that to his fellow employee’s HMPS email account  Gosden was dismissed for gross misconduct www.asb-law.com/employment

Gosden v Lifeline Project 2010  Employer claimed a breach of the equal opportunities policy and damage to its reputation  Dismissal fair on the basis that Gosden had intended for the email to be sent on and therefore he lost control over who the recipient forwarded it to.  No reasonable expectation of privacy for Gosden.  Had intention been to send only from home PC to the recipient’s home PC then privacy may have been engaged www.asb-law.com/employment

Crisp v Apple 2011  Apple’s induction training covered brand image and commercial reputation; how employees should present themselves in public, in online social networks and on blogs  The induction also stated that employees’ outside activities could affect Apple’s business interests and were therefore covered by Apple policies and guidelines  Apple stated that employees were not to display commentary about Apple’s products, services or initiatives on personal website or personal social media  Warning about disciplinary consequences was clear www.asb-law.com/employment

Crisp v Apple 2011  “Ask before you post”  Specific online business conduct course dealt with how employees should use blogs to comment on Apple’s products and made it clear how outside online activities could affect job performance  Crisp didn’t attend the above course! www.asb-law.com/employment

Crisp v Apple  Apple were alerted to 4 Facebook posts by Crisp  Alerts made by Crisp’s Facebook “friend” and colleague  Posts referred to: • His “work” in expletive terms • Technical problems with his iPhone • An Apple app not working (expletives used) • Ridiculing a tagline used by Apple to promote Beatles music being available on iTunes the following day www.asb-law.com/employment

Crisp v Apple 2011  At the various disciplinary meetings Crisp: • Provided limited or no comment • Maintained his Facebook was private as only his “friends” had access • His posts did not expressly identify him as an Apple employee • He had removed posts once alerted to an issue • Inconsistent treatment by Apple of other employees  He was dismissed for gross misconduct for bringing the company into disrepute  Other employees were investigated and they cooperated with process, apologised and received FWWs www.asb-law.com/employment

Crisp v Apple 2011  Tribunal held that Apple’s belief in Crisp’s misconduct was genuine; it had reasonable grounds for holding that belief in that there were unchallenged Facebook posts; Apple complied with ACAS Code and fairness requirements and the investigation had gone as far as it could as Crisp’s no comments answers meant there was nothing further to investigate. www.asb-law.com/employment

Crisp v Apple 2011 The dismissal sanction was reasonable because Crisp was aware of the reputational damage, fully aware of the brand image issues, had given no mitigating circumstances and there was no inconsistent treatment as a previous employee had also been dismissed for a similar matter. www.asb-law.com/employment

Crisp v Apple 2011  Privacy rights were discussed but Crisp did not have reasonable expectation of privacy over his posts because: • Online comments made by one person can easily be forwarded to others and control therefore lost regardless of Facebook page being set to “private” limiting initial access to “friends” • An Apple employee working with technology should have known the above!  Apple’s interference with his privacy rights was justified and proportionate to protect Apple’s own rights in respect of reputation. www.asb-law.com/employment

Preece v JD Wetherspoons 2011  Preece was a shift manager  Company handbook referred to acts committed outside work that could have adverse effect on suitability for job or which could bring the company into disrepute  Internet and email policy stopped employees contributing to blogs, Facebook where content could be seen to affect reputation of the company, its staff or customers  Wetherspoons had a support line for staff abused by customers www.asb-law.com/employment

Preece v Wetherspoons 2011  Preece was subjected to a shocking torrent of verbal abuse and physical threats by 2 customers and then 3 abusive calls by the customers’ daughter  Preece, whilst on shift, started a Facebook discussion and identified the 2 customers by name  Entries were light hearted and spanned a period of time  Daughter complained and Preece dismissed  Dismissal justified as Preece had no expectation of privacy regarding posts in the public domain and freedom of expression damaged company’s reputation www.asb-law.com/employment