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Legal Insight: How do you control social media usage in a BYOD world?

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20th Aug 2012
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Media reports and a growing number of employment tribunal cases have revealed just how naive but also cruel and sometimes defamatory people can be when it comes to communicating online.

But if social networking does get out of hand, it can generate potential problems and liabilities for employers. Social media buffs can use the channel to communicate with friends, colleagues and the entire world if they so choose. But unless such activity is sanctioned as part of their job specification as is often the case in PR or marketing roles, some limits on usage will have to be established. This means that devising suitable policies is essential in order to set standards of behaviour and help employers deal with potential abuse, employment claims and reputational damage. But the adoption by some businesses of a ‘bring your own device’ approach, which not only enables but even encourages employees to use their own smartphones, tablets and laptops for work, also raises some new issues: how do employers control social media usage and the content of personal emails or text messages when the use of equipment by staff in both a work and personal context has blurred in this way? More even than viral emails, text messages and social networking sites such as Facebook or Twitter, because they can be used to instantly publish comments and replies, have the capacity to cause real damage unless carefully controlled. While social media is unlikely to be used by many employees at work and should not routinely cause trouble because most communications are personal and harmless, some individuals do simply go too far - in spite of company rules.  Discriminatory or offensive comments But how can you best manage people who randomly tweet their thoughts about Jessica Ennis’ abs, while watching the Olympics (with their employer’s permission) in the head office boardroom? We all understand that it is necessary to set and maintain standards of conduct and behaviour for online interaction at work. Unfortunately, well-publicised incidences of employees’ bad behaviour can be extremely damaging to a company’s reputation, regardless of any steps taken to address it after the event. This situation is compounded by the fact that the internet creates a searchable and permanent record, revealing the name of the offender and often their employer, in just a few clicks. But individuals who publish discriminatory tweets or abusive comments about others risk being caught and prosecuted, as was recently shown in the case against a Twitter ‘troll’, found guilty of abusing footballer, Fabrice Muamba, after his heart attack in March 2012. Although the issue is not limited to football, racism does seem to be the most dominant form of abuse. For example, Olympic bodies recently took action against a Greek athlete for allegedly making a racist remark on Twitter about Africans living in the country by banning her from competing. Sexism and sexual harassment also make regular appearances in Twitter comments, with soon-to-be-former MP, Louise Mensch, and TV presenters, Kirstie Allsopp and Helen Skelton, all suffering alleged abuse. Other victims, including Olympic diver Tom Daley, have suffered from remarks that may be completely unrelated to race or [***] and so are not be ‘discriminatory’ on these grounds, but are nonetheless offensive. The Equality Act 2010 covers discrimination, victimisation and harassment related to protected characteristics such as [***], race and disability. In the course of employment Victims of other forms of abuse, however, can complain to the police, press criminal charges against their abusers and/or pursue claims under other legislation such as the Protection from Harassment Act 1997, which may lead to fines or custodial sentences. Managers who receive complaints of discrimination or harassment (from any source), meanwhile, need to respond quickly and carefully as any failure to deal with them can create a separate liability under the Act. If employers fail to take steps to protect complainants and the reason for that failure is found to be because of the employee’s [***], race or disability, they will be liable for an act of direct discrimination. They may also be liable for acts of harassment by third parties against staff members in the course of their employment too. The question of whether employees are acting in the course of their employment is central to the liability issue because employers are vicariously liable for the unlawful acts that personnel commit at work. This means that they are responsible for staff members’ acts of unlawful discrimination, including bullying and harassment, unless they can establish that reasonable steps were taken to prevent such activity. An employment tribunal will focus on what employers did to deal with this type of behaviour both before and after the incident. Well-drafted policies, staff training and the enforcement of policies in the case of any breaches are essential if they are to deal with online bullying and harassment.  But employees should also be made aware of possible disciplinary sanctions, including their dismissal and, in serious cases, potential personal liability for discrimination and harassment claims. However, it is worth noting that the scope of the term ‘in the course of employment’ has widened as employees, who are increasingly in thrall to their BlackBerries and/or entertain clients at sporting events over the weekend, are seemingly always at work. Limited rights to privacy Therefore, employment tribunals are open to find that employers are responsible for staff members’ behaviour, however bizarre or uncharacteristic it may appear. Alarmingly, if a given act takes place within the course of their employment though, it does not matter if the behaviour, tweet or offensive email occurs with or without the employer’s knowledge or approval. This means that an employee’s right to privacy and an employer’s right to monitor communications must be considered carefully when included in any policy on social media. It is acceptable for employers to access personal emails or online messages held on the company’s server, or to obtain and use evidence of abuse published online, as part of a disciplinary investigation, however. Moreover, employment tribunals have recently upheld decisions to dismiss employees who were found to be in breach of company codes of conduct and policies on social media, equal opportunities and harassment, even when they posted Facebook comments (see Teggart v TeleTech UK Ltd.) or sent emails (Gosden v Lifeline Project Limited) from home computers or smartphones in their own time. In both cases, the tribunals also dismissed the claimants’ argued rights to protection under the Human Rights Act 1998, determining that any right to privacy had been lost as they had made the information public.  As a result, in any policy to do with social media and IT, employers should warn personnel that their rights to privacy are limited. They should also receive training that makes it quite clear that not all communications, including emails, tweets or online posts, will be perceived as private, particularly if they are created using company equipment.  Andrea Ward is a senior associate at law firm, McGuireWoods London LLP.

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