Page 33 - PWM2023_December EBook

TECHNOLOGY REPORT

posted that he was gay on Facebook. The are putting in place to guard against its misuse”. However, she derogatory comments about the
tribunal ruled that the employer was lia- says that those cases that have come before the tribunals have employee’s workplace posted on social
ble because the claim, though untrue, resulted in conflicting decisions, reflecting how fact-specific media.
was posted at work and during working these types of cases are. She says: “Where work-related mis-
hours. In essence, case law has shown that dismissals in situations conduct comes to light via social media,
Stevens cites Facebook and Twitter where the reputational damage is minimal to non- the employer may legitimately take dis-
as the two most prominent platforms existent are invariably unfair. However, more damaging alle- ciplinary action against an employee,
for airing personal views. He has wit- including dismissal – even where the
nessed first-hand, that employees not gations can see a dismissal found to be fair. And in one case a dis-
only have the ability to post controver- missal was found to be fair even though the post stayed online conduct occurs outside of work. She
sial comments and opinions, and often for seven months without reputational harm. That said, the adds: “If something is posted, the key
do so, but such messages that can very award to the employee was cut by 60% because of his actions question is ‘is it relevant to the job and
quickly spread. Worse, he says that that led to the case being brought. reliable?’ and does the employee’s con-
“where inappropriate, controversial or duct goes to the heart of the employer/
offensive comments or viewpoints are Employee private accounts employee relationship or affects their
shared, members of the public could It’s unreasonable for employers to ban staff from having pri- ability to perform their role.”
very easily associate those comments or vate social media accounts – they’re part of life. However, Smith cautions, however, that
points of view with the company which employers need a social media policy to minimise risks and “employers will rarely, if ever, have
employed that individual, thus damage strengthen the employer’s position. In fact, Smith thinks that “a grounds to take action against employ-
its reputation”. policy will send a clear signal about the employer’s expectations ees for activity on the employee’s own
He continues by recognising that equipment outside of working hours
businesses do use social media as a tool over use of social media. At a minimum, it will make its employ- which did not risk or cause damage to
for marketing. However, because the ees aware that posting on social media, even in their spare time,
line between personal and professional may give grounds for disciplinary action, including dismissal”. the employer’s reputation”.
Stevens agrees, saying that such “a policy should set bounda-
accounts can become indistinct ries and define acceptable and unacceptable use and behaviour Writing a social media policy
Navigating the social media ees with responsibility for running a as this will prevent any ambiguity around social media use media policy will help an employer jus-
“employers should ensure that employ-
So, a clear and well-publicised social
business social media account use it in
amongst employees.”
a professional way, and not as though it
Training is the key to bringing a policy to life and should
is their own personal account”. involve employees and HR to monitor and enforce the policy. To tify any disciplinary action they take.
But how to write it?
landscape confidentiality. Here Smith says that Smith this means a consistent approach to treating harassment that: “A policy should establish clear
Then there are potential breaches of
At its simplest, Smith recommends
and bullying online with the response to harassment and bully-
“apart from express restrictions,
written rules on the use of social media
ing in other contexts.
employees owe implied contractual
duties of fidelity and confidentiality to Where employees are monitored in the workplace this should in the workplace, explain clearly what
type of private social media use is cov-
their employer. Posts on a public forum not go further than necessary and employers should avoid ered by the policy, warn staff that
about the employer’s business can implementing restrictions which are intrusive or unreasonable
breach those duties”. Examples include – it is a balancing act that employers must carefully undertake. breaches of the policy could lead to dis-
posting images of identifiable work-in- On this Stevens warns that human rights legislation provides ciplinary action including dismissal
progress without the customer’s per- individuals with the right to respect for private and family life and refer to any other relevant policies
mission. and correspondence and this could be contravened by monitor- such as disciplinary, bullying and har-
And let’s not forget the risk to pro- ing. He suggests that employees could argue that scrutinising assment and IT/communication poli-
ductivity with staff spending too long their social monitoring postings could be discriminatory – “pro- cies.”
on social media sites. portionality and consistent treatment of employees is therefore Typical features that Stevens advo-
important”. cates including relate to how employ-
Case law He also recommends to employers not wanting employees ees should portray themselves online;
It’s interesting that both Smith and accessing social media accounts in the workplace, at all, that which social media platforms are
Stevens highlight a fair amount of case they apply technical measures to block access from company deemed acceptable, especially in the
law around the subject: Whitham v devices and its network. He says that “firms should be aware that workplace; whether personal social
Club 24 Limited t/a Ventura in 2010; an employee can still access social media whilst in the workplace media accounts can be used during
Trasler v B&Q in 2012; British by just using their own devices”. working hours; the difference in using
Waterways Board v Smith in 2015; and company social media accounts and
Gibbins v British Council in 2017. Sanctions for employees who break the rules personal social media accounts; and
Notably, Smith comments that social So, what can an employer do if an employee breaks the rules? guidance on how employee’s activity on
media cases have fallen considerably In answer, Smith says to treat it as any other case of misconduct. personal social media accounts can be
over the last five years, “which may be She sees cases falling into two categories – inappropriate behav- linked back and associated with the
testimony to the measures employers iour by an employee that is exposed through social media, or company.

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