The Trolls that lurk under the Employment Bridge… Social Media in Employment Law

Introduction

A workable definition of an internet troll is as follows:

‘Named after the wicked trolls of children’s tales, an Internet troll is someone who stirs up drama and abuses their online persona. Trolls thrive in any environment where they are allowed to make public comments. At the lighter end of the troll spectrum, trolls can be personal friends who like to goad and joke with their buddies online. Media attention in recent years has equated trolling with ‘online harassment.’

The events of the summer, where trolls made death threats to the historian Mary Beard along with 2 MPs, serve to highlight that, whilst the age of social media brings distinct advantages it also brings a raft of problems. These problems inevitably extend into the employment forum.

In 2013, 11 civil servants were dismissed from the DWP due to their use of Twitter and Facebook in breach of DWP’s social media policy. Further, it has been asserted that staff using social media sites at work are costing UK businesses £1.38 billion each year and that 33% of employees had made derogatory comments about their workplace online.

As social media continues to evolve, becoming an important part of sales and business development for most organisations, the Employment Tribunal is increasingly called upon to determine cases with social media aspects. Whilst to date the majority of case law focuses on unfair dismissal the implications of social media regrettably extend further into an employment relationship.

Duties owed by employers in light of social media

Protecting your Employees from Trolls when they are participating in social media activities in the Course of their employment

Employees, whilst choosing to participate privately in social networking, are increasingly required, or encouraged, to engage with social media platforms during the course of their employment.

Whilst the provisions under the Equality Act 2010 relating to third party harassment have been repealed a duty is still owed to an Employee under the Health and Safety at Work Act 1974 to ensure, ‘so far as is reasonably practicable’ the health, safety and welfare of their employees and to provide a suitable working environment. This of course includes taking reasonable steps to protect employees from unacceptable treatment. A failure to protect could be seen as a breach of contract such that it could give rise to a constructive dismissal claim.

Consideration would also have to be given to other potentials cause of actions arising out of a failure to protect such as a personal injury claim for stress at work.

Protecting Employees from Bulling and/or Harassment undertaken by colleagues through Social Media

The following cases provide guidance on the court’s approach to protecting employees from abuse via social media.

Novak v Phones 4U [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2013] Eq. L.R. 349:

A store manager, who had fallen down the stairs at work and was on long term sick leave, brought a claim for race discrimination (nationality USA), harassment and victimisation after a number of his colleagues posted on Facebook making fun of his accident.  He criticised his employer for failing to take such steps as were required by statute to stop what he regarded as discriminatory conduct. The issue before the EAT  (Employment Appeals Tribunal) was whether his claim was brought in time given that there was a 7 month gap between sets of entries. It was held that the different Facebook entries were a continuous act given that they were made by the same people, and covered the same subject matter.

An interesting point was raised, albeit not decided, namely, whether an act of discrimination would continue for as long as a post remained visible on Facebook or a Tweet remained on Twitter.

Otomewo v The Carphone Warehouse Ltd ET/2330554/2011

Whilst at work 2 colleagues used the Claimant’s iPhone without his permission and updated his status, ‘finally came out of the closet. I am gay and proud.’ The Claimant brought a claim alleging direct sex discrimination, direct sexual orientation discrimination and sexual orientation harassment. He was successful in his claim for sexual orientation harassment on the basis that it was reasonable for him to be embarrassed and distressed by the status update, which was an unwanted and unnecessary intrusion into his private life. As the comments were made during the course of employment the employer was liable.

The decision of the court raises an interesting questions, namely: would the same conclusion have been reached if the comments were made outside of work?

Asociatia ACCEPT v Consiliul National Pentru Combaterea Discriminarii [2013] All E.R (EC) 857

The European Court of Justice indicated that the fact that statements evidencing discrimination had not emanated directly from an employer was not necessarily a bar to establishing the existence of facts from which it might be presumed that there had been discrimination within the meaning of Article 10 (freedom of expression).

Gross misconduct and social media

The following (non-exhaustive list) are potential areas of gross misconduct:

• Release of confidential information – e.g. police officer tweeting about the security at the Olympic games.
• Bullying/harassment (see above).
• Undermining reputation of business / bringing business into disrepute.
• Breaching social media policy (incorporated into contract of employment).
• Breach of duty of fidelity.

Situations where dismissal held to be fair

Teggart v TeleTech UK Limited NIIT/704/11

The Claimant posted comments on his Facebook account outside of work regarding a colleague’s promiscuity (the Respondent was also cited). The colleague became aware of the comment and asked the Claimant to remove it. This prompted the Claimant to make another derogatory comment. The matter was brought to the Respondent’s attention whereon the Claimant made a further comment stating that he was not going to apologise. The Claimant was dismissed for gross misconduct on the grounds of: a) harassment; and b) bringing Teletech into disrepute. He sought to argue that he had been unfairly dismissed and that his right to freedom of expression had been breached. The tribunal (NI) found the dismissal fair. There was no breach of privacy, as the Claimant was not entitled to make comments that damaged the reputation and rights of others.

‘When the Claimant put his comments on his Facebook page, to which members of the public could have access, he abandoned any right to consider his comments private.’

Weeks v Everything Everywhere Ltd ET/2503016/2012

The Claimant made frequent references to his workplace as ‘Dante’s inferno’. A Facebook friend and colleague reported him to their employer for being in breach of the company’s social media policy. Despite a warning to refrain from making such comments, the Claimant continued to make comments about how he disliked his workplace and made nasty comments to the person who had reported him, ‘I ain’t changing what’s on my Facebook page so eat cake bitch’ and ‘If you come to hurt me I’m f…… ready for ya! No more words from me, next it’s action.’ The tribunal held that his dismissal was fair as, although the employer had no evidence that it had suffered reputational damage as a result, the comments had been made over a long enough period and the Claimant had refused to stop which meant they were likely to cause damage. In any event it was reasonable to dismiss for bullying and harassing his colleague.

Preece v Weatherspoon PLC ET/2104806/10

Preece was dismissed for gross misconduct after making inappropriate comments on Facebook about some abusive customers. The customers found out and reported the Claimant to her employer. Given that such comments were in contravention of the Respondent’s internet policy the Claimant was dismissed. The tribunal found that the dismissal was fair because the Claimant had failed to comply with the clear and well-communicated policy.

Crisp v Apple Retail (UK) Ltd ET/1500258/11

The Claimant was dismissed after making derogatory comments on Facebook about Apple. Prior to this he had been given extensive training on protecting the Apple brand, which included a policy about abuse of social media and rules for posting comments online. His dismissal was found fair due to a well communicated and drafted social media policy.

Situations where dismissal held to be unfair

Stephens v Halfords Plc ET/1700796/10

The Claimant, who was on sick leave, felt that the employee website was not a suitable or sufficient forum to discuss whether they should be compelled to work 3 out of 4 weekends. He therefore set up a Facebook page in order to provide a forum. Shortly after setting up the forum he noted the Respondent’s policy on social networking, which stated that employees who made public statements about the company or encouraged dissent would face disciplinary action. He therefore closed down the Facebook page. Thereafter, he was disciplined and dismissed for breach of trust for posting confidential information on a social networking site. The tribunal found that no reasonable employer could have concluded that dismissal was appropriate given that the Claimant had apologised for his actions and removed the page as soon as he realised it was contrary to the Respondent’s policy. As such there was nothing to indicate that his continuing employment was untenable.

Whitham v Club 24 Ltd t/a Ventura ET/1810462/10

A comment from the Claimant that she worked in a ‘nursery’ was deemed insufficient to justify dismissal. The tribunal stated that there must be a real reputational or commercial risk to the company by virtue of the statement(s) made.

Smith v Trafford Housing Association [2012] EWHC 3221 

A Christian employee posted his views about gay marriage on Facebook. It could be seen that he was an employee of the trust and had a number of friends who also worked for the trust. After a disciplinary hearing he was demoted for gross misconduct on the basis that the comments had the potential to cause offence, could prejudice the trust’s reputation and breached its code of conduct, which obliged employees not to promote religious and political views. The High Court held that the Claimant was entitled to express his views as a) his Facebook page was personal; b) the comment was made outside of working hours so that no reasonable person would conclude that they were made on the trust’s behalf; and c) his views were commonly held and promoted in the press, and were therefore, when viewed objectively, not offensive.

It is important to note that there are limits on an Employer’s right to restrict freedom of speech. It was found that even though there was a work related context by virtue of him being Facebook Friends with colleagues this alone would place too great a fetter on the importance of the right to freedom of speech, despite the fact that his comments would offend those with a contrary viewpoint.

The decision of the court raises an interesting question namely, whether the outcome would have been a different if a fellow Employee had entered into a civil partnership? What are the possible ramifications re a bullying/harassment claim?

Trasler v B&Q Ltd ET/1200504/2012

After a bad day at work the Claimant posted on Facebook that his employers were a ‘fucking joke’ and that he would be doing some ‘busting at work’, which B&Q interpreted as doing damage to property. He ended the post with LMAO (laugh my ass off). The Claimant argued that given the sign off the comments should not have been taken seriously. The tribunal held that the dismissal was unfair as it accepted it was a one off posting borne out of the frustration of a bad day and there was no reputational damage. However, his award was reduced by 50% due to his actions.

Kass v Gillies and Mackay Ltd (unreported – July 2013)

The Respondent was responsible for the maintenance of the Claimant’s car. The Claimant was stopped by police, fined and told that his MOT was out-of-date. The Claimant posted an angry message on Facebook criticising his employers for not doing their job properly. This was seen by around 100 of his Facebook friends including the company’s business manager (the daughter of one of the directors).  She requested that the Claimant remove it immediately. However, given that the post had been made on a smartphone, the Claimant did not know how to remove it. By the time he returned home to a desktop computer and managed to delete the post, the director had been informed.  The tribunal took the view that the public at large could not have seen the comment and therefore that the company had overreacted given that venting his frustration to his friends and family via telephone would have been a similar act.

This case seems to run contrary to the approach followed by Preece and Teggart theat privacy is irrelevant. Further, the Employment Tribunal failed to acknowledge the difference between a heated verbal exchange in a private location and a written attack on a website accessible by many.

Mason v Huddersflied Giants Rugby League FC (unreported – July 2013)

The claimant was a rugby league player.  He was summarily dismissed following a post on Twitter, available to over 4,200 followers, attaching a photo of his naked bottom.  Although it was deleted 48 hours later his contract was cancelled. The Judge found the dismissal unfair on that basis that a) there was clear evidence that the Huddersfield Giants wanted the Claimant to leave the club (two new players taken on an attempts to transfer him) and this was the primary reason for dismissal; b) these actions could not be construed as a breach of contract; and c) it was very unlikely that a fan seeing the tweet would assume it had been condoned by the club.

Points to be taken from the case law

• In addition to the BHS v Burchill test, an employer will need to show serious harm, actual or potential, to the Respondent organisation.
• Knee-jerk reactions to comments or posts made on social media sites are to be avoided.
• The fact that an employee has posted a comment about their employer online  does not mean that it can be taken as read that the employer’s reputation has, or will, be brought into disrepute.
• The level of privacy may be relevant but is not conclusive given that the weight placed on privacy settings in decided cases are at odds. On balance it would appear that reliance on restrictive privacy settings is unlikely to be a sufficient defence.
• It is essential for a Respondent to have a clear and well-communicated social media policy.

Questions to be considered when contemplating dismissal for abuse of social media

1. Were the parties identifiable from the posts? If the author is not is it worthwhile making a disclosure request/application to the web-site host?
2. How was the comment published and who has access to it e.g.  – can it be re-tweeted ?
3. Do potential clients/ customers have access to the information?
4. Are the comments targeted against any individual?
5. Have the comments a) brought the employer into disrepute; b) caused damage (consider how important image/reputation is); and c) was the information confidential?
6. Has the employer had training or is there a social media policy in place?
7. Is the employee, or should the employee be, aware of the potential ramifications of inappropriate comments?

Using evidence from social media to support disciplinary action

In Gill v SAS Ground Services UK limited ET/2705021/09 the Respondent used entries on Facebook and YouTube as evidence in a disciplinary hearing to show that the Claimant had lied about being off work sick.

Whistle blowing – making a protected disclosure

In 2012 a policeman faced an enquiry into alleged gross misconduct and was told not to use Twitter after he raised concerns about the reform of the service and its impact on public safety through the social media site. He asserted that he had tried to raise his concerns through legitimate channels to no avail.

Whilst there are no reported cases dealing with social media in the whistle blowing arena, it is not inconceivable that an external disclosure could be made through the forum of social media. Consideration therefore needs to be given as to whether a comment falls within the ambit of whistle blowing, such that the employee has statutory protection prior to any disciplinary action being taken.

Ownership of LinkedIn and Twitter accounts and contacts

In the case of Hays Specialist Recruitment (Holdings) Limited v Ions [2008] EWHC 745 (Ch) a former employee was ordered by the High Court to hand over business contacts built up on his personal page of the social networking site LinkedIn. This was on the basis that it was asserted that the employee had copied and then retained confidential information concerning Hay’s clients and contacts thus breaching the restrictive covenants in his contract.

In Whitmar Publications Limited v Gamage and Others (2013) EWHC 1881 (Ch) it was held that where a LinkedIn Group is owned and maintained by an employer the contacts on an employer controlled account belong to the employer, on the basis that the contacts constitute confidential information.

As LinkedIn terms and conditions state that ownership of the account is personal to the account holder it is advisable, in order to avoid any confusion over the ownership of contact information, that employers ensure that accounts are opened using work email addresses with work photos and control of input of text falls on the organisation. Further, it is advisable that contracts of employment or staff handbooks set out the parameters, in particular that work-related contacts be deleted from social media accounts following termination.

Recruitment

Employers are frequently checking job candidates’ social media accounts for vetting purposes. This could potentially cause problems given protection afforded to candidates under the Equality Act. Further there is an argument that this would be a breach of Article 8 and/or 10 ECHR.

Conclusion

How to ensure a Respondent is in a strong position to resist claims:

1. Social media policies – ensure they are clear and well communicated (linked into contracts of employment and other policies).
2. Training  – including report to the employer any incidents of abuse both inside and outside of work.
3. Providing support and assistance if an employee has been the subject of social media abuse.
4. Taking active steps to intervene where necessary.
5. Avoiding a knee-jerk reaction to employee social media abuse.
6. Consideration of the employee’s right to privacy and freedom of expression.
7. Inserting contractual confidentiality clauses and post termination restrictions dealing specifically with social media.

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