Friday, 4 April 2014

CLIG Seminar: Employment law and socia media

These notes come out of a CLIG seminar I attended on 18 March 2014 - the excellent and extremely thorough speaker was Alexandra Mizzi. Apologies for any omissions or mistakes, which are entirely mine and certainly not her fault.

Social media is being tackled piecemeal in the courts and some of these interesting cases are discussed below. It is a tricky area due to increasingly blurred lines between personal and private lives. Creating a successful social media brand is personality driven, so a personal/professional clash is inevitable.

The seminar covered the following areas: the perils of online selection, screening and recruitment; employee misconduct online looking at both company reputation and employer liability; and finally the tricky issue of social media contacts ownership. 


An Acas Report, ‘Nigel Wright Recruitment (2011) found that more than half of all UK job seekers use social media sites, including 18 per cent who use Facebook and 31 per cent who use LinkedIn’. The survey data is quite old so I’m sure that if they were to run it again, the percentage would be higher. 
Potential employers also use social media. Thirty four per cent of employers were using these sites as a marketing tool to recruit or contact applicants and 13 per cent were using them as a screening tool (Davison, Maraist and Bing, 2011).
There are employment law risks for using social media as a screening tool. 
  • Discrimination: Unsuccessful candidates could allege discrimination if there was something on their Facebook page alluding to sexuality/race/religion which the employer had seen. This would be extremely hard to prove. But as if employers are forced to become more open in their use of online screening, this might feasibly lead to legal actions.
  • Information: Further risks arise around accuracy of information, reputation issues, privacy and data protection. ICO guidance is important – you should inform the candidate that checks will be carried out. When potential employers start looking online, they have no idea what they’ll find so they are advised to avoid social media.
In reality, I would say that many employers will be checking up on their candidates, regardless. Nonetheless to avoid potential claims, HR policies need amendments to take account of online scrutiny.

Employee Misconduct Online
Employers have wide legal scope to protect their reputation. They are free to define what it regards as misconduct as long as it is in their policy in a clear and specific way.
In Crisp v Apple [2011] ET/1500258/11, C posted derogatory statements on Facebook about A and its products. The posts were made on a private Facebook page and outside of working hours. One of his colleagues, who was a Facebook friend, saw the comments, printed the posts, and passed them to the store manager. Crisp was subsequently dismissed for gross misconduct.
In Whitham v Club 24 Limited t/a Ventura ET/1810462/10, W posted comments on Facebook stating that she worked in a nursery “and I do not mean working with plants”. Two of her colleagues were Facebook friends and reported her comments to her manager. Despite an apology, she was dismissed by V, on the basis her comments could potentially damage Ventura's reputation and put Ventura's relationship with Volkswagen / Skoda at risk. Taking into account her clean employment record and the rather vague social media policy, she won her case.
Both of these cases depended on the company’s social media policy. Apple’s was very clear which is why Crisp lost.
A more nuanced approach was taken in Smith v Trafford Housing [2012] EWHC 3221(Ch). Mr Smith posted an article headed, “Gay church marriages to be given the go ahead” with the comment, “an equality too far”. One of his work colleagues who was a Facebook friend was offended and reported him. His employer found that he had breached the Housing Association’ code and was guilty of gross misconduct. Their code stated that they expected their staff to promote a positive image, not be political and not bring the association into disrepute.
The court found that they had breached S’s contract. No reasonable reader of his page could rationally conclude that his comment was posted on behalf of his employer. Given that he had expressed his views in a relatively moderate way, in his own time, on his own page meant that the code didn’t apply. People had a choice whether to read it, or not. Each case must be looked at carefully because freedom of speech must not be fettered by company policies.
Employers are liable for discriminatory conduct, even if it takes place outside the work place, eg., an after-hours social event.
In Otomewo v Carphone Warehouse ET/2330554/2011, O’s own phone was used without his consent to post an update on his Facebook page. It said 'Finally came out of the closet. I am gay and proud'. He is not gay, but the Tribunal accepted it was embarrassing and distressing. As the comment was posted in the course of employment, at work, during working hours, and involved dealings between staff, the Tribunal decided that Carphone Warehouse was liable for the harassment on the grounds of sexual orientation.
However what would have happened if this had happened at work social event? What about pictures from posted after a work event? Would the employer be liable? Presumably they would be. The employer must show that they have taken all reasonable steps to reasonable steps to prevent the employee from doing the discriminatory act, through policies and training etc.
The employer is responsible for wrongs committed in the course of employment, if there is a sufficiently close connection. If an employee is asked to tweet on behalf of an employer and they say something defamatory in the course of employment, the employer would be liable. Disclaimers and ‘retweets not an endorsement’ do not help. Again policies and training is required.
Who owns social media contacts?
Most of us are encouraged to build up contacts on professional networks such as LinkedIn. This is a valuable resource and one which would benefit your competitors; however it belongs to you, the individual, and may be the result of many years and many jobs. So what happens when you leave your employer? What if the employer is paying for the premium version?
A recent case looked at the ownership of emails. In Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886 it was held that employer was entitled to former contract worker’s business emails because there was an agency/principle agreement. It would have been more straightforward if Mr Adkins been an employee, since contracts of employment and IT policies usually state expressly that all work-related emails belong to the employer. However emails are different from LinkedIn contacts.
Could an employer ask the former employee to delete their account? If the ex-employee says no, what can they do? LinkedIn won’t get involved and the account is personal to you. In Penwell Publishing (UK) Ltd v Ornstein & Others ([2007] EWHC 1570 contacts were held on an internal server so there was little doubt that the contact information belonged to the employer. This wouldn’t apply to LinkedIn because the information is held remotely.
Hays Specialist Recruitment (Holdings) Ltd & Another v Ions & Another [2008] All ER 216 dealt with LinkedIn accounts directly. Shortly before he resigned, Ions transferred contacts built up in the course of employment to his LinkedIn account, which the court said, could lead to a valid claim by Hays. The implication here is that there was proof that he wanted to take clients with him when he left Hays to start his own recruitment business. Unless there was documentary evidence which showed that you approached contacts when you changed role, it is hard to prove that you are soliciting ex-clients. The functionality of LinkedIn means that when you change jobs, it automatically lets all your contacts.
A recent case Whitmar v Gamage [2013] EWHC 1881 (Ch) looked at LinkedIn groups. Ms. Wright was responsible for dealing with groups as part of her employment duties at Whitmar. After leaving that job, she used information from those groups to send a press release by email. They also alleged that Wright refused to hand over LinkedIn passwords because she said they were personal connections. The Judge granted the injunction restraining W and G from using these contacts. In this case, it was clear that the groups were managed in the course of employment. However if your contacts and contacts within groups are not just ‘clients’ but a mix of friends, colleagues, university friends and anyone else you know in a semi/professional capacity, this muddies the waters.
It is up to the employer to provide watertight policies and guidelines to ensure there is no misunderstanding. The blurring of boundaries between personal and professional is a problem for the employer but it is part of the employer’s duty to expressly state what is to be done in particular circumstances.
I'm not a lawyer and I make no claim to be an expert. Basically, regardless of your employer's social media policy, try to remain respectful of your work and your work colleagues in an online public environment; don't moan about your work when people know who you work for; don't pinch work colleagues' phones and write nasty, embarrassing things; don't post incriminating work pics on instagram etc; and if you must vent about work niggles, do it with your best (non work, IRL) friends. You know, the old fashioned way!

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