Social networking issues for HR

Achieving fair dismissals
and protecting yourself
Facing up to Facebook and Twitter
Anna Denton and Jenny Jones
Social Networking Issues for HR
27th November 2007
Anna Denton‐Jones

employment law & training

Survey: Do you......?
• Have a computer use policy? Does it cover
‘social networking’?

• Encourage your staff to use the internet as a
business tool?

• Allow staff to access non‐related websites
during their lunch breaks?


DISCUSSION: PROS AND CONS


Recruitment
• Nothing to stop you from checking publicly
available material
• Widely considered not to be good practice
– Undermines what you say about equal opps
monitoring
– Exposure to discrimination?


Competitors use it to approach your
staff?
• E.g.‐ manager approached by competitor via
LinkedIn
• Recruitment agents ready access
• Restrictive covenants


Promotion
• You can take into account what happens in
the private life of your employees provided it
impinges on what they do for you.


What if you discover information
which means you don’t want to
recruit/promote that person?
• You are free to recruit who you like so long as
you don’t discriminate

• Human Rights Act 1998
– Article 10 ECHR – freedom of expression
– Article 8 – respect for private life?

• Discrimination legislation


CONFIDENTIALITY ISSUES AND
INTELLECTUAL PROPERTY


Case study
• Dan works for Wecansaveyoulotsofmoney.com.
• He describes on his Facebook page and Twitter
accounts that he is working on a new product
and in essence what it does.
• In doing so he is inadvertently letting ex‐
colleagues who now work for a competitor about
the thing that will give the company a
competitive edge.


Case study ‐ IP
• Suzi in HR has trained as an internal workplace
mediator paid for by her employer. She
develops lots of precedent documents
including a mediation checklist and a
mediation agreement.
• Suzi is a member of a Forum run by the CIPD
where members chat and share best practice.
She offers her guide to anyone who wants a
copy.


Case study – IP continued
• Mark works for a small employer. He sees
Suzi’s post and request a copy of her
documents and uses them for the benefit of
his organisation


Case study
• Employee who raised a grievance
signed a compromise agreement with
a confidentiality clause in it then
breached it by posting on Facebook
that he had “made the company pay”.


Legal protections for confidentiality
• Express restrictions in the contract of
employment
• Implied duty of fidelity and confidentiality to
the employer
• Injunction or action in damages
• Disciplinary issue capable of leading to
dismissal
• Prevention better than cure: clear rules

Confidentiality and contacts lists
• You may regard contacts established by your
staff as essential to your business and want
them to be surrendered to you if the
employee leaves


REPUTATIONAL ISSUES


Case study
• A bar man at a hotel in Swansea notices the captain
of a rival team in the hotel.
• He posts derogatory comments about this person on
Twitter to his friends.
• His comments are then retweeted by his friends to
their friends. A famous commentator with 21,000
followers picks up on the thread and sends this to all
of them too.
• From the comment it is clear where he worked.


What about our reputation?
• Libel and defamation actions open to you just
the same as if the comment was published
eg:‐ in the newspaper
• Damage trust and confidence with employee:
discipline and dismissal are open to you
• Distinction between defamation and
comments tending to disparage or simply
opinions which you don’t like


To what extent can we take action
over commentary we don’t like?
• Freedom of expression vs confidentiality
• Does it impinge on your reputation?
– Names the employer
– Clear where they work from previous postings


End of employment
• Rules that people can no longer state that
they are employed by you?


Case study
• John is on parental leave. He hears from his
colleagues on facebook that there is a
restructuring facing in his department and he
is no really worried he could be made
redundant.


POTENTIAL OTHER CONDUCT ISSUES


Concerns about use during
working time
• You are entitled to prevent staff
using your equipment for personal
use or set boundaries such as
use only in breaks.
• If usage is in breach of your policies
then you will be able to discipline
• Could we monitor what is happening instead?
• Increasing use of mobiles


Bullying and Harassment issues
• Two employees have a friendship/relationship
outside work which turns sour.
• They then start using text messages and FB to
send messages outside work.
• This outside of work conduct starts to affect
what is going on in work.
• How do you deal with this?


Bullying and harassment issues
• You are liable if the conduct in question takes
place in the course of employment and you
have not take reasonable steps to prevent it
• Remember harassment not only outlawed
under Equality Act but also Protection from
Harassment Act 1997


Sickness case studies
• The employee called in sick but her Facebook
updates suggested she was having a spray‐tan
and hair done for a big weekend away
• Employee on long‐term sick but Facebook
betrays that they are running their own
business sideline


What if an employee does something
criminal? (even in their own time)
• Eg:‐ employee investigated by police for
• “grooming” children
• downloading terrorist material
• football hooliganism
• selling forged signatures of pop stars on Ebay


Case study
• Employee uses bluetooth from his phone to
send inappropriate photos to anyone with
blue‐tooth switched on on their phones in the
vicinity.


POLICY DRAFTING


Key ingredients for a policy
• Having one in the first place!
• Reminder that activity is not necessarily
private and that you can discipline just as
much in this area as in others
• Sets out that conduct online that is harmful to
the organisation can amount to misconduct
and gross misconduct


Key ingredients continued
• Appropriate measures regarding:‐
– Use of your IT resources
– Your Intellectual Property, confidential and privileged
information
– Use of third party’s intellectual property and
protecting their privacy and confidentiality
– Prohibiting bullying and harassment and
discrimination
– Prohibiting negative comments about the
organisation, staff, business contacts and competitors

Key ingredients continued
• Consistency with other policies
• Requirement to state in postings that views
expressed don’t reflect the views of the
organisation?
• Educate employees:
– Disclosure or misuse of information could have
various potential consequences
– Privacy (or lack of)


Key ingredients continued?
• Clear rules on offensive and discriminatory
comments and consequences
• Make clear extent, reasons and nature of
monitoring ‐ monitor that rules consistently
applied
• Guidance on how to use social media for the
organisation’s benefit


Guidance for managers?
• Setting an example to colleagues
• Joining with sub‐ordinates eg:‐ Facebook
friends, being followed by colleagues on
Twitter
• Risks associated with posts


Using social media in claims
• Check whether the claims are true with a view
to discrediting them eg:‐
– that not working
– that so ill they cannot attend an appointment
– that they found certain types of conduct
offensive


ACAS recommendation

“Treat electronic
behaviour the same
as you would treat
non-electronic
behaviour”

QUESTIONS?


Social networking issues for HR

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