By Michelle O'Riordan, Solicitor, Employment and Pensions Unit
Even a cursory glance at the headlines in a newspaper on any given day will prove just how topical social media sites are. Just a few short years ago the words Facebook, Bebo and LinkedIn were not even in our vocabulary, now they are in everyday use. Social networking sites (“SNS”) are a valuable marketing tool, however personal use by employees poses a number of challenges. A survey carried out by Irishjobs.ie in 2010 revealed that over half of Irish workers accessed SNS while at work. Yet “cyberslacking”, as it has become known, is only one of the many challenges faced by employers.
In fact, employers may not be aware how easy it is for employees to post messages about employers, colleagues or customers on SNS or that employees may also share photos and videos. Employees themselves may not be aware of how far reaching their actions are or that their comments, photos or videos may become viral in a short space of time. There have been many cases in the UK involving employees' use of SNS impacting the workplace and it is only a matter of time before such cases become more frequent here. Some of the issues that have arisen in these cases are (i) a bar manager making derogatory comments about customers and, (ii) an employee comparing a superior's wage to his own.
Specific employment issues that may arise include:
• The potential for employees to make derogatory comments about employers on SNS
• Employee's private use of SNS impacting the workplace
• On-line bullying and harassment.
Each of these employment issues merits further discussion.
The Potential for Employees to Make Derogatory Comments About an Employer on SNS
In Emma Kiernan v A-wear Limited, an employee, who had called in sick to work, made disparaging remarks about her manager on a Bebo web page. A customer saw the comments and complained to the employer. After an investigation, disciplinary hearing and appeal, the employee was dismissed. The Employment Appeals Tribunal found that while A-wear's disciplinary procedures were fair its sanction was not. The Tribunal found that the comments deserved censure and possibly disciplinary sanction but that they did not constitute gross misconduct. The Tribunal also found that the comments were disrespectful, inappropriate and damaging to the employment relationship and that the employee had contributed to her dismissal. She was awarded €4,000.
Employee's Private use of SNS Impacting the Workplace
Employees often use SNS outside working hours and from private computers and mobile telephones. To what extent can an employer discipline an employee for use of SNS outside the workplace and with private IT systems? In the above case the Tribunal appeared to reach the conclusion that an employee's activities outside employment could warrant censure and possible disciplinary sanction. The English case of Gosden v Lifeline Project Limited, while not binding here, provides an illustration of private use of email impacting the work place. Mr. Gosden was employed by Lifeline Project Limited at Lindholme prison to work with drug users. He forwarded an email from his home computer which had racist and sexist content to a colleague who worked in Moorland prison, resulting in the email entering the prison system. It was headed with the words “It is your duty to pass this on”. Mr. Gosden was found guilty of gross misconduct and was dismissed. The UK Tribunal found the dismissal was fair. The Tribunal placed significance on the heading of the email “It is your duty to pass this on” and concluded that the email was not intended to be private. Although this is a UK case, it is illustrative of the issues that can arise. A clear comparison could be drawn with comments posted on a SNS. As these comments can be read by a large group of people, it may be concluded that they are not intended to be private. Although employees are entitled to a private life an employer will be entitled to balance this against its need to protect its legitimate business interests.
On-Line Bullying and Harassment
What should an employer do in circumstances where an employee bullies or harasses a colleague on SNS? The employer should deal with the matter as if the circumstances giving rise to the complaint had occurred in the normal course and investigate the issue in accordance with its bullying and harassment policy.
Social Networking Policy
An employer may be aware of the challenges SNS pose but what can an employer do to deal with issues that arise? An employer could ban the use of SNS at work, however, this will be impractical for employees who require access to SNS in their employment. It will also not deal with the situation where employee's use of SNS from their own IT systems (such as through mobile phones or personal computers) causes issues for an employer. All employers should ensure that they have a robust social networking policy. This is advisable even if an employer has banned the use of SNS at work. In those circumstances the policy can be adapted accordingly. The policy could be a separate social networking policy or could be incorporated into an employer's email and internet policy. The following issues should be addressed in any relevant policy:-
• Restrictions on employees accessing SNS through the employer's IT systems and during office hours
• Confirmation that disclosure of confidential information is not permitted, including on SNS
• A direction not to make any derogatory comments about the employer, it's business, colleagues, customers, clients or suppliers on SNS
• Confirmation that on line bullying and harassment will not be tolerated and a reminder that any incidences of such bullying and harassment will be dealt with in accordance with the employer's bullying and harassment policy
• Information in relation to the level of monitoring which the employer will undertake in relation to employees' use of SNS
• A clear and unequivocal statement confirming the consequences for breaching the policy i.e. that breach could result in disciplinary sanction up to and including dismissal
• Guidance for employees who use SNS to market the employer's business.
Employers need to be aware of the potential issues that may arise from employee's personal use of SNS. Employers should ensure that they equip themselves to deal with any of the issues that may arise by having a social networking policy in place which encompasses the elements outlined above.
For further information please contact Michelle O'Riordan in our Employment and Pensions Unit.
Employers should be aware of the employment challenges posed by SNS.
Issues that arise include the potential for employees to make derogatory comments about the employer on SNS, an employee's private use of SNS impacting the work place and on line bullying and harassment.
Employers should put a social networking policy in place to deal with any issues that may arise.