1 A few words about us “Levenes Employment provides 'outstanding' advice at a lower cost than City firms. Audrey Onwukwe 'fights hard for her clients'; and Victoria Willson is 'very strong, technically and tactically'.” Legal 500 UK “Audrey Onwukwe of Levenes Employment is recommended for her "commercial approach" and is "always fully committed to obtaining the best results for her clients," sources say. She focuses on advising on complex discrimination, whistle-blowing and outsourcing matters.” Chambers and Partners UK

2 In the news “British Airways striker sacked after ‘he threatened to poison pilot’ in YouTube rant” (Daily Mail) “Virgin sacks 13 over Facebook ‘chav’ remarks” (Guardian) “I made a mistake on my phone”: Police officer who posted photo of his privates on Facebook hits out at sacking” (Mirror) “Scots Guard removed from Royal Wedding duty for making vile slurs against Kate Middleton” (Mail) “Teacher is investigated over ‘semi-naked’ Facebook photos” (Metro)

3 Overview Employers who got it wrong Inappropriate use Risks to the employer Developing a policy Guidelines for responsible use Business interests v employee rights Discipline and dismissal Employers who got it right

4 Employers who got it wrong Taylor v Somerfield Stores Ltd – videos of employee’s misconduct at work on YouTube Whitham v Club 24 Ltd t/a Ventura – “relatively minor” derogatory comments about workplace on Facebook Smith v Trafford Housing Trust – comments on gay marriage on Facebook Novak v Phones 4U Ltd – comments on Facebook part of continuing act for purposes of a discrimination claim

5 Inappropriate employee use Discrimination Bullying and harassment Breach of confidentiality Defamation Misrepresentation Market abuse Infringement of intellectual property rights Breach of Data Protection Act Breach of website terms of use

6 Risks to the employer Grievances or complaints, e.g. from employees, customers, suppliers, public) Claims for which the employer may be vicariously liable Damage to reputation Loss of business Burden on management time Loss of productivity

7 Developing a policy 1 Non-contractual ‘Online’ misconduct as serious as ‘offline’ misconduct Highlight links to relevant policies/contractual terms Identify when personal use is affected Privacy settings have limitations Ownership, access and obligation to return

8 Developing a policy 2 Set clear standards and give practical examples: - Personal use of social media: when, where and on whose equipment identity of employer address - Business use of social media (if permitted): confidential information references third party consent own views

9 Developing a policy 3 Monitoring or interception - Data Protection Act and Regulation of Investigatory Powers Act Breaches will constitute misconduct (and in serious cases, gross misconduct) and may result in disciplinary action (including dismissal) Must seek guidance if in any doubt about use

10 Guidelines for responsible use 1 Protecting the employer’s reputation Respecting confidential information and intellectual property Respecting third parties, e.g. colleagues, clients, suppliers Respecting privacy and data protection requirements Complying with all contractual obligations and the employer’s policies

11 Guidelines for responsible use 2 Complying with third party website terms and conditions - in business use Avoiding sensitive non-work related topics, e.g. politics, religion, race – in business use Limiting postings to area of knowledge/expertise Correcting errors promptly Avoiding conducting arguments online Reporting potential problems

12 Implementing the policy Communicate it to all staff Provide training on it, e.g. during induction Review and update it regularly Respond to breaches promptly, using disciplinary procedure where appropriate

13 Other issues to consider Ownership, access and transfer of confidential data - Hays Specialist Recruitment (Holdings) Ltd and Another v Ions and Another - LinkedIn contacts Use of social media creates material which may be disclosable in the event of a claim Some commercial insurance policies do not cover liabilities arising from use of social media

14 Business interests v employee rights Employees have the right to: - participate in legal off-duty, off-site conduct - ‘blow the whistle’ on illegal activity - various rights under the Human Rights Act

15 Human Rights Act 1998 Article 8: right to respect for private and family life - reasonable expectation of privacy required; interference to protect others’ rights and freedoms is permitted, but must be proportionate - Pay v United Kingdom - sexual activities of probation officer working mainly with sex offenders Article 10: right to freedom of expression - interference to protect reputation or rights of others, or prevent disclosure of confidential information is permitted, but must be proportionate

16 Disciplining and dismissing 1 Follow the ACAS Code and internal procedures: - investigate the issues and inform employee of them in writing; - conduct a disciplinary meeting; - provide a written outcome and the right to appeal; and - in the event of an appeal, conduct an appeal meeting and provide a written outcome.

17 Disciplining and dismissing 2 Consider the context and potential audience of postings, not only the content Clearly identify the relevance of any personal conduct to the employment relationship Consider employee’s rights and if in doubt about where to strike the balance, seek legal advice Treat employees consistently Keep an open mind – and a written record!

18 Dismissing fairly Misconduct is a potentially fair reason for dismissal Burden is on employer to satisfy the Tribunal that: – it had a genuine belief that the misconduct occurred, having carried out a reasonable investigation; – dismissal was within the range of reasonable responses; and – it followed a fair procedure

19 Employers which got it right Crisp v Apple Retail (UK) Ltd – criticism of employer on Facebook Preece v J D Wetherspoons Plc – derogatory comments about employer’s customers on Facebook Benning v British Airways Plc – videos criticising and threatening strike-breaking colleagues on YouTube Teggart v TeleTech UK Ltd – vulgar comments about colleague on Facebook

20 How we can help you Our services include: supporting you on day to day matters, e.g. dismissals, grievances guiding you through major issues, e.g. restructuring, redundancies, TUPE transfers drafting or improving your contracts, policies and procedures negotiating compromise agreements with outgoing employees defending claims, e.g. unfair dismissal, discrimination