Social media in the workplace In house lawyers forum – autumn 2013

• why does it concern employers?

– vicarious liability

– business reputation

– confidentiality

– data protection

• an accepted principle - behaviour

outside work can justify

• disciplinary action if there’s a sufficient

connection with work

• Eggleton v Kerry Foods Ltd

UKEAT/938/95

– potentially fair reasons for dismissal

(s.98(2) ERA 1996) can apply to conduct

outside of work – question is does the

conduct affect the employment?

• this principle is equally applicable to

the social media age

Comments made on social media outside of

work

• Smith v Trafford Housing Trust [2012]

EWHC 3211 (Ch) – comments made on

Facebook about gay marriage

– employer breached contract by demoting

Comments made on social media outside of

work

• Teggart v TeleTech UK Ltd NIIT

00704/11, 15 March 2012 – comments

made on Facebook about promiscuity of

female colleague

– dismissal for gross misconduct was within

range of reasonable responses

Common themes in case law?

• policies need to cover what conduct will

be misconduct / gross misconduct

– make employees aware

Common themes in case law?

• are views expressed on Facebook

‘private’?

– Teggart v TeleTech

– Crisp v Apple Retail (UK) Ltd

ET/1500258/11

• has your reputation really been

damaged?

– Crisp v Apple Retail

• Walters v Asda Retail Stores Ltd ET

2312748/08

• illustrates the importance of a well

drafted social media policy

• can you really control what your

employees do?

• no, but you can make them think twice

• you can block social media access on

workplace networks, but employees still

have smartphones and the cases we

have heard about involved activity

outside of work hours

What can you do?

• check your policies

– do you have a social media policy?

– is your disciplinary policy up to date?

– do your other policies refer to social

media – e.g. anti-harassment and

bullying policy

What can you do?

• during an investigation

– retain your evidence – screen shots

• your policy should include

– cross references to other relevant

policies, eg IT policy; anti-harassment

and bullying policy; data protection

policy

– clarification of rules on personal use –

limited or entirely banned?

– rules on monitoring

– rules on acceptable use of social media

• your policy may include

– how social media may be used for the

business – marketing; use of LinkedIn

– using social media searches in

recruitment

Get in touch if you have any questions or

would like further information.

t +(0) 121 237 3999

e james.tait@brownejacobson.com