Until recently abuses of workplace technology were restricted to people wasting time playing games on their computers and surfing the internet.
However, these days social networking sites such as Facebook, LinkedIn, MySpace and Twitter, along with YouTube, Ebay and others, can eat up hours of employees’ time and expose employers to all sorts of liabilities and damage to reputations.
Recent surveys have revealed that the instances of disciplinary action arising out of internet and email related conduct are very much on the increase and this means that the TUC’s 2007 description of Facebook users as “HR accidents waiting to happen” was surprisingly accurate!
Ideally, what organisations ought to be striving for is an acceptable level of use that works to the organisation’s advantage. There have though been a number of high profile cases where the use of social media, and in particular Facebook, has caused problems within employment.
In June 2010, a pub manager for Wetherspoons entered into negative conversations on her Facebook account about being subject to a torrent of verbal abuse, physical threats and several abusive phone calls from two customers. The customers’ daughter complained to Wetherspoons that the offensive comments about her mother on Facebook had been made “very public”. The pub manager was subsequently dismissed for gross misconduct.
In this case, Wetherspoons had a properly drafted policy regarding the use of social media. This provided that Wetherspoons reserved the right to take disciplinary action should the content of any blog, including pages on sites such as Facebook, be found to lower the reputation of the organisation, staff or customers
(Preece v JD Wetherspoons plc).
In a similar case, an employee of Apple was dismissed in January 2011 for gross misconduct after he had posted a number of derogatory comments on his Facebook page about Apple including “once again **** you very much work”, “MobileMe ****** up my time zone for the third in a week and woke me up at 3am? JOY!!” and “Tomorrow’s just another day that hopefully I will forget”.
The second comment referred to MobileMe, which is an Apple “app” and the third comment was posted the day before Apple used a tagline from a Beatles song on its iTunes page “Tomorrow is another day. That you’ll never forget” in advance of The Beatles’ music becoming available on the site. It was critical to the tribunal’s decision that Apple had made clear in its policies and training materials that protecting its image was a “core value” and had drawn attention to the fact that making derogatory comments in social media was likely to constitute gross misconduct (Crisp v Apple Retail (UK) Limited).
These cases aside, employers do need to be careful that an employee’s conduct actually justifies their dismissal before they dismiss them, otherwise they could find themselves facing a claim for unfair dismissal.
Other potential issues that may arise from the use of social media, of which employers need to be aware of, are the potential for libel claims or incurring vicarious liability for discrimination or harassment claims.
Libel occurs when someone writes or publishes something which is defamatory or damaging. An employee who has bad-mouthed his employer on an internet discussion site or a blog can therefore not only be subjected to disciplinary proceedings, but can also be subjected to libel proceedings in the same way as if he or she had published the comments anywhere else.
Employers can be held vicariously liable for the acts and omissions of their employees carried out during the “course of their employment”. In instances of libel, infringement of copyrights, discrimination and harassment are all situations where an employer could find itself vicariously liable for the actions of employees who are using its internet facilities, even if doing so without its knowledge or permission.
Most commonly, liability can arise for the employer where comments are made online by one employee about another employee that amount to harassment, or where the comments are discriminatory.
The fact that the offending act took place while an employee was not physically at work or not using the employer's equipment is unlikely to be sufficient to defeat such a claim.
So, the key to effective use of social media in the workplace is to ensure you have adequate policies and procedures in place to make it absolutely clear that employees must conform to appropriate standards, even outside the workplace.