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When your Facebook doesn’t fit
Helen Brooks and Jonathan Achampong discuss the HR and legal implications in the workplace of social networking Internet sites.
The increasing popularity of social networking Internet sites (“Sites”) (e.g. MySpace, Facebook and Bebo) has left some employers unsure of how to deal with employees who regularly manage and contribute to Site profiles. Since Mark Zuckerberg founded “The Facebook” whilst attending Harvard University, USA, in February 2004, Facebook has grown to be a worldwide phenomenon and now boasts an incredible 30 million users worldwide, 4 million of which are in the UK. The very public risks associated with employees accessing such Sites during work time and commenting on their employers and / or colleagues means that employers cannot ignore the potential issues this raises.
It is essential in today’s employment environment that employers put in place policies to ensure their legal risks and the potential damage caused by inappropriate “blogs” and work time spent visiting the Sites is minimised. Employers, therefore, need to act now by ensuring that their email and Internet policies cover not only use of working time to access Sites but also that employees are made aware that potential disciplinary action could ensue as a result of inappropriate contributions to such Sites.
Personal Websites – When can you act?
In 2005, Mr Joe Gordon, an employee of Waterstones bookstore, authored a personal Internet blog in which he called his employer ‘Bastardstones’. When Mr Gordon was subsequently dismissed for ‘gross misconduct’ and for bringing the company into ‘disrepute’ he became the first (and we are sure not the last) person in the UK to be sacked as a result of the content of a personal blog.
More recently, several employees of the directory enquiries service 118 118 now face disciplinary action and potential dismissal due to comments made on a “group” by the name of “I Survived 118 118” set up on Facebook. Whilst the “group” has now been removed, many other “groups” dedicated to discussing workplaces and employee tales of woe continue, as do the potential consequences for the employees involved.
Employees should be advised that a plea of anonymity does not circumvent the problems associated with personal Sites. In the USA, a Delta Airlines attendant Ellen Simonetti, otherwise known as the ‘Queen of the Sky’, used a false name and referred to purportedly fictitious events on her Site. She did not, however, remain anonymous for long after she posted pictures of herself in her uniform - revealing the Delta Airlines logo. After being suspended, without pay, she was dismissed for bringing Delta Airlines into disrepute. Social networking sites, therefore, will inevitably contain information through which an employee’s workplace can be identified – be it pictures, diary entries or lists of friends who perhaps are not so concerned about anonymity i.e. ex-employees.
Whilst the majority of cases in the UK have resulted in disciplinary action and in some instances dismissal of the offending employees, the French case of Catherine Sanderson resulted in a very different outcome. Ms Sanderson, employee of the accountancy firm Dixon Wilson, was dismissed after her Paris-based employer objected to her Internet blog. Miss Sanderson had been accused of bringing the company into disrepute after keeping a ‘Bridget Jones’ style diary about her life, which included comments about her colleagues. Dixon Wilson argued that Miss Sanderson should have been dismissed as she had been blogging during company time and that parts of her diary implied that she had lied about her location during work hours. Dixon Wilson also argued that Miss Sanderson had damaged their reputation. The Tribunal, based in Paris, however, remained unconvinced by these arguments and concluded that Miss Sanderson had been dismissed ‘without real and serious causes’. Dixon Wilson were ordered to pay Ms Sanderson compensation equivalent to a year’s salary (approximately £30,000) and bear the costs of her unemployment benefit. Whilst employment law in France is noted for the protection it affords employees, employers in the UK should take heed and ensure that any disciplinary action it instigates is done so following a full investigation and with just cause.
It should also be noted that there is a current train of thought that employers may have grounds to demand ownership of employees’ social networking profiles if the Site holds information relating directly to an employee’s employment and such information has been generated in the course of that employment. The employee being the owner of the information and ultimately the Site may, therefore, be subject to challenge.
On a positive note
From a business perspective, social networking sites can also act as useful networking tool. Many Sites offer the opportunity to join “groups” or “networks” of people with similar interests or even groups dedicated to individual organisations, this can allow employees to build relationships, and exchange ideas and information. Such mechanisms can also be handy tools for enabling employees to network, attract clients and increase a company’s profile within a specific business community.
What should you do?In our rapidly advancing technological world, employers need to keep on top of potential areas such as personal Sites and blogs and develop policies that deal with such matters. An ever-increasing number of employees are openly discussing their employers, colleagues and / or workplaces in Sites, exposing themselves and / or their employers to potential action as a result. Whilst employees may be aware that their employers would take a dim view of the amount of work time spent on such Sites, unless you specifically advise employees of this, they may not necessarily be aware that they risk disciplinary action, dismissal and potential defamation claims.
Employers are increasingly concerned about the amount of time that employees are spending on such Sites and many employers are implementing additional IT policies to make it clear that disciplinary action and potentially dismissal may follow, should employees be found to be accessing these sites during working hours. As the Telegraph newspaper recently reported, more than 70 per cent of businesses in the UK have now banned Facebook. A recent study found that Facebook users in the UK spend an average 191 minutes a month on the site - and many admit to being addicted. As a spokesman for the Metropolitan Police commented, “there is no business need for employees to access them [social networking sites]”. Many employers, therefore, including the Metropolitan Police, British Gas and Lloyds TSB, have installed Internet filters to block access to the Sites.
Employers should, therefore, check their employment documents, including contracts of employment and employee handbooks, and consider whether company policy (a) makes it clear that employees must devote all of their working time to their duties (b) emphasises the risks of disclosing information to third parties via the Internet (c) makes it clear that unsuitable blogs could give rise to disciplinary action, and/or defamation claims (d) makes it clear that naming colleagues, clients or customers on their personal websites/blogs is a disciplinary offence and (e) stipulates that discrimination, harassment and bullying of fellow employees in cyber space will not be tolerated and will be dealt with under the standard disciplinary procedure. Employees also need to be aware that they are entitled to raise a grievance under the standard grievance policy should they be the victim of discrimination, harassment or bullying by a fellow colleague via the Internet.
In light of the increasing popularity of social networking sites, prudent employers are encouraged to get to grips with the issues sooner rather than later.
Helen, Jonathan and the employment team advise on all employment related legal issues and aim to find effective solutions to both generic and specific human resources related topics. For more information, please contactThis article was first published by Consult Gee HR during September 2007 www.consultgee.co.uk
