Social media issues for employers and employees (2014)

St#Philips#Chambers!ʃ!Employment!

SOCIAL MEDIA AND EMPLOYMENT LAW

Introduction

1. This talk concerns the use of social media in the workplace and the implications for employers, employees and their respective advisors.

2. Social media covers a spectrum of platforms in which people interact virtually. This may be through websites, mobile applications, or computer programs. Social media is a phenomenon; radically shaping society and affecting most social relationships.

3. Social media includes (not exhaustively listed):

• Facebook, Twitter, LinkedIn and Instagram; and

• Snapchat, Grindr and Tindr.

4. This talk will look at the kinds of issues advisors are likely to face when it comes to social media use.

Fundamental rights

5. Beyond the employer’s rights, the employee has fundamental rights which the tribunals are bound to give effect to and protect: X v Y [2004] I. R. L. R. 625. These include rights include the Article 8 right to private and family life, the Article 9 right to freedom of thought, conscience and religion and the Article 10 right of freedom of expression.

6. These rights are protected to the extent they are relevant to any question requiring determination by the tribunal and will be considered below.

7. Remember, all courts and tribunals are obliged to interpret legislation compatibly with convention rights and act consistently with the same: ss. 3, 6, Human Rights Act 1998 (HRA).

8. Social media use throws up a number of issues, some of which were considered by Acas in its research paper Workplaces and Social Networking: The Implications for Employment Relations in 2012.

Social media and employment

8. Disgruntled, naughty or incompetent employees are not new. However, before such employees would have had a limited impact on any business. For example,

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employees have always had bad things to say about their boss. Now, this conduct can have a much more pronounced effect online.

9. In 2010, a myjobgroup survey reported that 40 per cent of employees admitted to talking negatively about their employers online.

10. Employers have responded by:

• Creating specific social media policies;

• Amending their terms of employment; and

• Amending or updating their employee handbooks.

11. Additionally, they have taken practical steps such as blocking social media at work, which is of limited value given the use of mobile phones: 40 per cent of social media use is mobile (Nielsen’s, “The Social Media Report,” 2012).

Pre-employment

12. Acas reported that over a quarter of employers admitted to using social media to vet potential candidates. The real figure is likely to be much higher, especially when recruitment firms are included.

13. Social media searches may reveal significant personal information, including the race, age and marital status of the applicant. In addition, it may reveal sexual orientation, religion or political beliefs, it may be apparent that the candidate is pregnant or intending to start a family or that they have a disability.

14. This could give rise to discriminatory decision making, or, circumstances from which a tribunal may infer discrimination took place unless the employer proves otherwise.

15. Pre-employment discrimination claims should always start with an inquiry over social media use by the employer.

16. The Information Commissioner’s Office, charged with ensuring compliance with the Data Protection Act 1998 (‘DPA’) has published guidance (The Employment

Practices Code) stating that:

• vetting should be used to confirm specific points rather than for general intelligence gathering;

• information should only be sought from sources where it is likely that relevant information will be revealed; and

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• employers must avoid placing reliance on potentially unreliable sources.

17. The Code makes clear that the candidates should all be informed about social media vetting and have the opportunity to comment on any information subsequently obtained by the employer.

18. CIPD has also published a guide called Pre-employment checks: an employer’s

guide.

19. Obtaining information on employees will engage data protection principles under the DPA and employers will be bound to process that information lawfully. Furthermore, that same information may subsequently be extracted via subject access requests or, of course, disclosure.

Monitoring employees

20. Unfortunately, this is permitted. The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 SI 2000/2699 give employers the right to access information relating to the employer’s business. This may even include ‘personal emails’ if dispatched through the company’s facility.

21. The employees must however be notified of any monitoring. Covert monitoring is only permitted where the employer is investigating criminal activity.

22. Use of social media through the employer’s facilities is often a gateway for the employer to access that data through monitoring.

23. Again, DPA principles apply to this data.

Discipline and dismissal

23. This has created the most substantial litigation (at least at first instance). The stories of hard done by workers sacked for off-the-cuff status updates or tweets are plentiful.

24. The question is often, has the employee brought the employer into disrepute or breached the term of good faith and confidence?

25. What about convention rights? In X v Y, the court of appeal set out 5 questions:

(1) Do the circumstances of the dismissal fall within the ambit of one or more of the articles of the Convention?

(2) If so, does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons?

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(3) If it does, is the interference with the employee’s Convention right by dismissal justified? If it is, proceed to (5) below.

(4) If it is not, was there a permissible reason for the dismissal under the Employment Rights Act 1996 (ERA), which does not involve unjustified interference with a Convention right? If there was not, the dismissal will be unfair for the absence of a permissible reason to justify it.

(5) If there was, is the dismissal fair, tested by the provisions of s. 98 of the ERA, reading and giving effect to them under s. 3 of the HRA so as to be compatible with the Convention right?

26. Consider the case of X v Y and compare it to Smith v Trafford Housing Trust [2012] EWHC 3221. In the latter, the court held that:

“An employer may legitimately restrict or prohibit such activities at work, or in work related context, but it would be prima facie surprising to find that an employer had, by the incorporation of a code of conduct into the employee’s contract, extended that prohibition to his personal or social life.”

27. This throws into question the enforceability of wife-reaching social media policies.

28. A court will balance the Convention rights of the employee against the legitimate interest of the employer, however, must be proportionate in doing so. Certainly, when it comes to belief, the Eweida appeals showed that the English courts give too much prominence to the employer’s repetitional interests.

29. The starting point, however, is not simply did the conduct occur during working hours. Rather, does the conduct affect the employee, or could it be thought to be likely to affect the employee, when he is doing his work: Singh v London Country Bus Services Ltd [1976] IRLR 175.

30. This is why emails sent from home to a personal friend could result in a fair dismissal: Gosden v Lifeline Project Limited [2009] 2802731/2009.

31. It is not very helpful to cite first instance decisions on social media dismissals. However, some are helpful illustrations:

• Benning v British Airways [2010] (ET2703528/2010): C posted clip of colleague on YouTube. Dismissed for harassment, breach of data protection and social media policies. Compare this to Taylor v Somerfield Stores Ltd [2007] ET107487/07, a case of unfair dismissal.

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• Preece v JD Wetherspoons plc [2011] ET/2104806/10: C dismissed for posting about a customer on her status. Breached R’s internet policy. Tribunal found interference with freedom of speech justified under art. 10(2).

• Walters v Asda Stores Ltd [2008] 2312748/08: gross misconduct without a co-ordinate social media or internet policy. Based on breach of implied term.

• Crisp v Apple Retail (UK) Ltd [2011] ET/1500258/11: Sarcastic posts about Mobile Me on Facebook in breach of its internet policy. C had also been trained. Tribunal considered article 8, 9 and 10 rights.

32. Considering the above and a number of other first instance cases, the following propositions could be made:

• Employers will usually be protected by a clear and proportionate social media or internet policy;

• If this does not exist, the implied term will usually suffice providing that the employer can show it genuinely believed that the conduct breached it and ‘in all the circumstances’ a dismissal was fair;

• Tribunals will closely examine the actual conduct, i.e. the post. It will consider the number of times it was viewed, its potential to be viewed, whether it was posted at work or at home, the words and what the employer genuinely believed the words meant; and

• Tribunals are adept at dealing with social media as a concept and evidence relating to it as a matter of fact.

33. Consider the case of Kirsty Cook-Bell. How would you advise her or her employer?

34. Consider it in the context of the case of Pay v United Kingdom [2009] IRLR 139. C was dismissed as a probation officer with sex offenders. He wad dismissed after LR had discovered his involvement in bondage, domination and sado-masochist activities. C complained that the dismissal infringed his Article 8 right to privacy. The European Court of Human Rights found that the interference with his rights was justified given the activities in which he had engaged and the sensitive nature of his work with sex offenders.

35. The correct approach is to apply BHS v Burchell irrespective of whether social media is involved or not. The evidence against the employee can include social media exhibits if that was before the dismissing officer.

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36. Wherever fundamental rights are raised, it is for the employer to show that the protection of its legitimate interests only interfere with those rights proportionately.

37. Remember, employees may blame someone else (e.g. Benning) or deny all knowledge of the account or post. The employer is only obliged to carry out a reasonable investigation and form a genuine belief, not satisfy a criminal standard. Furthermore, employees should be wary of hiding behind usernames as employer’s can easily get orders for disclosure against social networks: see Applause Store Productions & Ors v Raphael (2008) EWHC 1781 (QB) and Patel v Unite [2012] EWHC 92, QB.

38. Patel is a good example of blogging or posting on the intranet amounting to serious misconduct or harassment.

Property in social media

39. Databases and data contained therein is the property of the creator, i.e. generally, the employer: Copyright and Rights in Database Regulations 1997. It may also be protected by copyright under the Copyright Designs and Patents Act 1988.

40. Data created by social media profiles may constitute data protected by the regulations or by other clauses protecting the employer’s data within the contract.

41. Remember, if the database is the employer’s property, extracting, using or copying a substantial part of it infringes the Database Regulations, even if the database is not confidential: Reg 16(1).

42. Usually employees will create databases or, for example, social media profiles as part of their duties for their employer, for which they are remunerated. Unless the contrary is agreed, such a database is the property of the employer: Reg 14(2).

43. Contact lists, exported from Outlook may amount to a database under the Regulations: Pennwell Publishing (Uk) Ltd v Ornstien [2007] EWHC 1570 (QB) [2007] IRLR 700. However, the purpose of the contact list is relevant.

44. If these contacts are uploaded on to, or used, in social media, then this is a breach of the Database Regulations. A court may even order the disclosure of the contacts list, from, e.g. LinkedIn: Hays Specialist Recruitment (Holdings) Ltd v Ions [2008] IRLR 904.

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45. Recruitment is an industry where networking is highly sophisticated and contacts jealously guarded. Could an employer require an employee to surrender his contacts on joining or leaving employment?

CONCLUSIONS !46. The presence and use of social media by employees is likely to create considerable

tensions between the rights of those employees and the interests of employers. Advisors should be alert to the arguments of proportionality and be familiar with social media to the extent that they can advise on it, to the extent it features above.

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IQBAL MOHAMMED

26 January 2014

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Social media issues for employers and employees (2014)

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