Social networking and blogging in employment | 01 May 10
Stephen Elliott, partner in the employment team at law firm Ward Hadaway, looks at the legal aspects of social media and employment.
The social networking site, Facebook, remains as popular as ever boasting some 350 million users worldwide. As its popularity shows no signs of decline, employers need to be aware of their rights and liabilities in respect of the online activities of their employees.
There have been numerous stories reported in the news over the last few years concerning employees who have been dismissed over their use of social networking sites.
In October 2008 it was reported that thirteen cabin crew had been dismissed by Virgin Atlantic for participating in a discussion on Facebook.
The messages posted on the site reportedly referred to passengers as "chavs" and alleged that the planes were unsafe and full of cockroaches.
A statement was later issued by the airline which confirmed that members of the cabin crew were leaving the company as a result of breaking staff policies relating to inappropriate behaviour.
In February 2009 a teenage office assistant was reportedly dismissed from her job after posting a message on her Facebook page stating that her job was "boring".
She had been employed for only three weeks when she was asked to leave. The firm commented that "her display of disrespect and dissatisfaction undermined the relationship and made it untenable".
The teenager defended her actions stating that it was a "throwaway" comment and that people "shouldn’t really be hassled outside of work".
Employers should be aware that action can be taken against employees who post defamatory comments about their employment in a public forum.
It is generally accepted that defamatory statements made on the internet are to be regarded as potentially libellous and would therefore be subject to libel proceedings.
If comments made by an employee are likely to destroy the employer’s reputation or destroy the relationship of trust and confidence between employer and employee, disciplinary proceedings and dismissal may ensue.
Employers should also understand what rights of redress they have should an employee post confidential information about their employment on a public forum.
In addition to any express obligations that an employee may have, employees owe implied contractual duties of fidelity and confidentiality to their employer.
If an employee chooses to reveal confidential information about their employment, for example a trade secret, the employer may be able to recover damages for loss suffered as a consequence of the breach of contract in addition to any disciplinary proceedings they decide to take.
In a number of cases, employees have been dismissed where misconduct relating to their employment has been discovered through networking sites.
In January 2009 a prison officer working in Leicester was reported to have been dismissed for gross misconduct after being caught "making friends" with serving and former prisoners on Facebook.
In April 2009 it was reported that a Swiss woman had been dismissed from her job after she was spotted on Facebook when she had claimed she was too sick to work.
She had told her employer that she had a migraine and needed to lie in a darkened room however she was then allegedly spotted using Facebook.
In defence of her actions she stated that she had accessed her iPhone whilst in bed. She also accused her employer of spying on her stating that her employer had created a fictitious Facebook persona to become "friends" with her to monitor her Facebook activity.
Employers are well within their rights to restrict employees’ access to certain sites whilst using company computers, particularly during work time.
Where employers allow employees to access social networking or "blogging" websites they should ensure that they have a clear formal internet policy setting out what employees can and cannot do.
Where no formal restrictions are set out it will be more difficult for an employer to dismiss an employee who exploits this privilege.
It follows that if an employer wishes to discipline or dismiss an employee for excessive or inappropriate use of networking sites, having a policy in place will reduce the risk of unfairness in any proceedings.