TWITTER, FACEBOOK AND EMPLOYERS
This is a particularly topical subject given the recent high profile “scandals” relating to photographs and texts being circulated via social media sights like Twitter and Facebook. This question of whether these are proper news stories is arguable but it is an area which employer (and employees) should be fully informed.
Twitter and Facebook posts give us an insight into individuals’ social and personal lives, whether we want these insights or not. Even if an individual takes their postings off-line, there will still be a record of what they had posted on the internet, which remains accessible via search engines for the future. In the US it is common for employers to search social media including blogs and forums to find out what current or prospective employees are doing in their private lives and how this activity might impact on their workplace or future workplace. Irish employers are beginning to follow suit.
Employees should be aware that the information they put on the internet may affect them and their employment prospects into the future. The fact that privacy settings are used does not mean that the posts are protected by confidentiality.
Information put on social networking sites may also be used for purposes other than that intended. Individuals tweeting and posting on social networks are subject to defamation law, criminal law preventing stalking, and laws preventing threats and abuse likely to stir up hatred.
What happens when an individual tweets or posts something that adversely impacts on their work?
This depends on whether the individual tweets or posts in their personal capacity or in relation to their work-place and the impact of this. It will also depend on the types of restrictions put in place by employers in their social networking policies for employees on using the internet and the type of misconduct which arises.
In Taylor V Somerfield Limited 2007 [UK] an employee was dismissed for posting a video on YouTube for bringing the Company into disrepute. The Employment Tribunal subsequently found he was unfairly dismissed as there was no proof the Company had in fact suffered any damage to reputation. It was quite difficult to identify the Company from the video and it was removed after 3 days. Employment Tribunals look at the fairness of a dismissal and whether a sanction is proportionate to the misconduct, and found in this case there was no evidence of any damage to the Company’s reputation.
In the Irish case of Kiernan v A Wear Ltd [UD643/2007] a customer of A Wear complained about a post on the Bebo site by an employee about a manager of A Wear. The Company did not accept the employee’s argument that the comments were private as they were published on a site accessible by the public. The Company accepted there was no damage to their reputation. The employee was dismissed. The Employment Appeals Tribunal found the dismissal was disproportionate, although it was a fair disciplinary process. It found the employee contributed to her dismissal and was awarded only €4,750.00.
In the UK in Preece –v-JD Wetherspoons plc [ET2104806/10] an employee of a pub posted repugnant comments about customers who subjected her to abuse. The Company investigated a complaint about this. Ms Preece admitted to posting on Facebook while at work and said she thought her privacy settings meant her comments could only be seen by friends. Her dismissal was found to be fair as her comments were in the public domain.
So how can Companies protect their organisations from employees’ actions?
Employers should have a simple clear policy setting out the conduct they expect from employees on social networking sites where the employee is identified as a member of the Company in order to protect the business and reputation of the Company. Companies should retain a record signed by employees acknowledging receipt of the organisation’s social networking policy and agreeing to its terms.
For further information please contact John Bollard by phone (01) 6794165 or email: firstname.lastname@example.org