Derogatory or defamatory statements made by employees about their employer, customers, suppliers or products / services
Implied term of mutual trust and confidence
Implied duty of fidelity
Express obligations
Staff handbook / company policies – these documents should clearly set out the standards of behaviour expected of employees
Derogatory or defamatory statements made by employees about co-workers
Disciplinary offences
Beware vicarious liability – acts committed by an employee during the course of their employment, whether or not the acts were done with the employers’ approval. Ensure the test for the statutory defence is met (reasonably practicable steps.)
Social media policy – ensure the policy is clear and widely available
Training – ensure all staff know what is expected / not expected of them in relation to social media
Ensure all of the following policies are linked so that any misconduct via social media is actionable; anti-harassment / bullying policy, disciplinary policy, social media policy, internet / email usage policy, code of conduct policy, staff conduct policy etc
Clarity of the social media policy
Cases have been won and lost on the clarity of the employer’s social media policy – it needs to be sufficiently clear in order to ensure that misconduct is safely actionable.
Crisp v Apple Retail plc (ET 2010) – Apple Retail plc was able successfully to defend an unfair dismissal claim after they dismissed an employee who had posted derogatory statements about the company’s products on Facebook. Apple demonstrated that it had given employees detailed training on protecting its brand including exercising caution when posting online. Apple’s policies also expressly stated that inappropriate usage may result in disciplinary action.
Grant and Ross v Mitie Property Services UK Ltd (unreported) - two sisters were successful in their unfair dismissal claim against Mitie Property Services UK Limited. Mitie dismissed the sisters due to their internet usage, relying on its policy. The only information in the policy was that access was permitted outside core working hours. The Employment Tribunal considered the wording in Mitie’s policy was too vague.
The nature / significance of the employees role within the organisation
The nature and significance of the employees’ role will be significant in establishing whether there is damage to the organisations reputation – Pay v UK (ECHR 2009). In this case a probation officer was also a Director of a company supplying products relating to bondage and sadomasochism – the two roles were not compatible.
The severity of their offence / misconduct
Mildly derogatory comments may mean any resultant dismissal would fall outside the band of reasonable responses – Whitman v Club 24 Ltd t/a Ventura (ET 2010)
Singh v London Country Bus Services (EAT 1976)
The disciplinary offence does not have to occur in the course of work, at the place of work, or even be connected with the work, as long as in some respect it affects the employee when he is doing his work.
The Complainant in the case was convicted of five criminal charges; theft of a building society book and four offences in relation to the obtaining of money by issuing forged documents, or attempting to do so, so as to get money from the building society. Singh was sentenced to twelve months imprisonment, suspended for two years. Singh was a driver of a one-man bus and part of this role involved the handling of money. Due to concerns over his trustworthiness and a ‘duty to the public,’ Singh was dismissed. The EAT upheld the decision to dismiss, stating that the employer was within their right to take into account Singh’s out of work conduct.
Mitigating factors; privacy settings and the employees work history
Consider how widely available / how many views the comments have received (privacy settings)
It is not reasonable to ignore the fact that the Claimant had an exemplary record previously - Whitman v Club 24 Ltd t/a Ventura (ET 2010)
Inappropriate levels of usage during working hours
Limited usage or blanket ban?
Acceptable usage:
ACAS suggest that a blanket ban may not be realistic
This will be fact specific dependent on the work of each employer
Consider the impact limited permitted usage would have on productivity
Do not just rely on implied duties, codify express duties into employment contracts, policies / employee handbooks
Set clear parameters for monitoring under a monitoring policy – be careful to be proportionate
Ensure training is provided on the policy
Ensure the internet / email policy is linked to the social media policy
Contract of employment
Restrictive covenants – what express, post-termination contractual terms will the employees be subject to?
Has confidential information been clearly defined?
Garden leave
Removes the employee from continuing contact with clients / customers and stops them accessing confidential information
If no post-termination restrictions are in place, employees remain under implied contract terms during their notice period
If they are subject to post-termination restrictions, garden leave will usually reduce the restricted period in any restrictive covenants
PILON
Immediately restricts access to confidential information
If no post-termination restrictions in place, PILON may not always be the best idea
PILON is generally more useful if post-termination restrictions are in place
Ownership of accounts
Privacy settings – if the employee’s account privacy settings are not closed, it may be difficult for an employer to maintain that the contacts are confidential.
Whitmar Publications Ltd v Gamage and others [2013] – the High Court held that the former employer could exert some control over an employees LinkedIn account after employment had ended. The employee had been guilty of breach of implied duty of good faith during her employment.
Who owns the contacts?
Hays Specialist Recruitment (Holdings) Ltd v Ions (High Court 2008) – a former employee was alleged to have uploaded client / candidate contact details from Hays’ database to his LinkedIn account. Hays was granted pre-action disclosure in relation to the Defendant’s LinkedIn contacts / emails.
Can employers force ex-employees to delete contacts acquired during the course of their employment? This principle remains untested in case law. Employers have shown reluctance to take legal action to force such action, e.g., Laura Kuenssberg moving from the BBC to ITV and taking 60,000 Twitter followers with her.
Other contact information
Copyright and Rights in Databases Regulations 1997
Cause of action if contacts could amount to a ‘database’ - a database is legally defined in section 3A(1) of the Copyright, Designs and Patents Act 1988 (CDPA) as:
"a collection of independent works, data or other materials which (a) are arranged in a systematic or methodical way, and (b) are individually accessible by electronic or other means."
Penwell Publishing (UK) Ltd v Ornstein (2007) – where an address list from Outlook (or similar software), backed up by the employer’s system, that ‘database’ / list belongs to the employer.
Social media policy
Define what is meant by ‘confidential information’
The policy should state that contacts gained during the course of employment are owned by the company and should be deleted upon termination of employment
The enforceability of such a policy may depend on its reasonableness and certainty and currently remains untested in case law.
