RUGBY Offices

Private Client Department, Address: 16 Church Street, RUGBY, CV21 3PW, Telephone: + 44 (0) 1788 579 579, Fax: +44 (0) 1788 570 949

Conveyancing Department, Address: 26 Regent Street, RUGBY, CV21 2PS, Telephone: + 44 (0) 1788 551 611, Fax: + 44 (0) 1788 551 597

Commercial/ Wills, Trusts & Probate Departments, Address: The Robbins Building, 25 Albert Street, RUGBY, CV21 2SD, Telephone: + 44 (0) 1788 579 579, Fax: + 44 (0) 1788 552 888

LONDON Offices

2nd Floor Berkeley Square House, Berkeley Square, London, W1J 6BD, Telephone enquiries: +44 (0) 2078876590, Fax number: +44 (0) 207 8876001

BANBURY Offices

Strathmore House, Waterperry Court, Middleton Road, BANBURY, OX16 4QD, General Telephone enquires: + 44 (0) 1295 270999

Social Networking – where private becomes public

 
 
As recently as five years ago the phrase ‘social networking’ had little meaning in the context of the internet, which at that time itself fell far short of the potential that it has achieved today. Websites such as Facebook, MySpace and Twitter were barely recognised by the masses.

However, the passing of several years has brought significant expansion. Rapid technological advances in the internet have changed the playing field for all of us in both our work and private lives. Facebook, in particular, has seen its active user numbers rocket to a current figure of more than 400 million worldwide. The number and demographic of those users is equally astounding (gaining significant representation in all age groups from 13 to 50 plus) and as a result most businesses can guarantee that a considerable proportion of their staff are tuned-in. Social networking isn’t just for teenagers!
 
In the context of employment, like other websites, social networking sites are accessible to employees online and have the potential to lead to significant levels of lost man-hours. However, more pertinently, social networking sites have provided a new medium for information which in the past would have remained private, to be published to the world at large at the click of a button and to remain in situ for months. The potential for exposure of damaging information is significant and the ‘facebook phenomenon’ has led to employees’ private lives becoming know to employers and to employers business dealing potentially becoming exposed to public scrutiny.
 
Perhaps unsurprisingly, the most common concern amongst employers relates to statements or photographs posted by employees on their personal webpages, that the employer considers are inappropriate, derogatory or otherwise damaging to its business. To what extent is an employer entitled to address such matters?

There is clearly some tension between the rights of an employer to protect its legitimate business interests and the rights of the employee to enjoy a private life, as enshrined by the Human Rights Act. The courts and tribunals endeavour to strike a fair balance.

It is fair to say that derogatory statements by employees regarding your business, its staff or customers that are widely published are likely to provide grounds for taking disciplinary action (in much the same way as they would be if written in any other format) and there have been a number of well-publicised examples.
 
Readers may recall that a Bedford police inspector saw his promotion withdrawn because he had posted photographs of himself in a sexual context wearing his police uniform. Similarly, 76 staff from Marks & Spencer were disciplined for participating in a Facebook discussion board where customers were described as "idiots" and "cheap little b******s". Prior to that Virgin Atlantic sacked 13 crew members who posted remarks on their Facebook pages calling passengers "chavs".

In those kinds of circumstances, disciplinary action or dismissal may be justifiable, but one important factor that a tribunal is bound to take into account is how widely the statement is circulated and in effect, how much damage is likely to be caused. 

In the matter of Taylor v Somerfield, Mr Taylor had posted a video on YouTube showing two of his colleagues hitting each other with Somerfield plastic bags, whilst at work. Taylor was dismissed for allegedly bringing Somerfield into disrepute. However, the employment tribunal hearing the case did not accept that dismissal was a reasonable sanction in the circumstances of that case. The tribunal took particular account of the fact that the clip had received only 8 ‘hits’.

Other information within an individual’s personal webpage that would be likely to warrant disciplinary action might include bullying or discriminatory comments regarding other staff.

However, what the courts will not do is simply sanction the imposition of an employer’s own moral views on acceptable behaviour, and employers can expect to have to evidence a specific business interest that is in need of protection, on each occasion.
 
Aside from internal disciplinary matters, there is also the potential for third-party liability to arise from the use of social networking sites and whilst incurring vicarious liability for comments made on an individual’s private Facebook page may seem remote, defamatory statements regarding competitors or clients could be a very real source of concern for those businesses that actively encourage their staff to use social networking sites for business development. Similarly, the inadvertent disclosure of confidential information or personal data is all too easy on such forums and is likely to lead to serious questions being asked of the employer’s checks and measures.

Practically, employers should set clear boundaries and make their expectations regarding the use of social networking sites clear by implementing a robust social media policy to sit alongside their existing IT policy. Such a policy will enable them to govern, so far as possible, employees’ activities both in and outside the workplace, in so far as those activities relate to or refer to their working environment.

Furthermore, employers should always ensure that any sanctions imposed as a result of any breach fall within the band of reasonable responses in the circumstances, or face the threat of a successful employment claim.