1. Social Media in
Employment Law
Sheila Aly

2. 60% of employees either do not know if their employer has a
social media use policy or believe that their employer does not.
“Social networking and reputational risk in the workplace,” Deloitte LLP 2009 Ethics & Workplace
Survey results.
A Deloitte LLP study found that 74 percent of employees
surveyed agree that it is easy to damage a company’s reputation
on social media.
“Social networking and reputational risk in the workplace,” Deloitte LLP 2009 Ethics & Workplace
Survey results.
In June 2009, the number of employers who had terminated an
employee for conduct related to his/her use of a social media site
doubled to 8 percent, compared with only 4 percent in 2008
Marketwire Survey
Statistics

3. Anti-Harassment Policies
Employee banter on race
Confidentiality
Employee tweets about an R & D Project
Tort or Unfair Trade Practices
Employees start an online smear campaign about a competitor’s product
Defamation
Online gossip that proves to be false
Employee Morale
A gripe on a Facebook can lead to poor morale
Vicarious Liability
If the employer doesn’t pay attention
The Issues: Some Examples

4. Disciplinary Offences

5. Was the content published during or after working hours?
Did the employee disclose confidential information of the
employer?
Did the employee use the employer’s or the employee’s own
equipment to publish the content?
Does the content constitute inappropriate behaviour toward a
co-worker and, if so, can publishing the content be linked to the
employee’s professional (as opposed to private) relationship
with that co-worker?
Does the content, such as a status update, indicate that the
employee has been untruthful toward their employer
Using Social Media In
Disciplinaries

6. Pay v United Kingdom
Probation Officer dismissed for bieng a director of a business
supplying bondage, domination and sadomasochism services
Mr. Pay relied on Articles 8 (privacy) & 10 (freedom of expression)
of the Human Rights Act 1998
Court Assumed privacy but Respondent wins
Justification argument under Article 8(2)
X v Y
In reaching its decision, the Court noted, in which the Court of
Appeal held that the right to private life was only relevant to a
claim of unfair dismissal where the activity that led to an
employee’s dismissal was carried out in ‘private’. In that case,
the employee was dismissed after his employer discovered
Disciplinaries

7. An employer could be vicariously liable for discrimination if:
•It were a manager publishing content about someone
•In a recruitment scenario if the person is rejected for a
disciplinary reason
•If it occurred in working hours
•If the act occurred on the employers’ equipment
There is no case law on this specific point as yet.
Discrimination Claims

8. Waters v Metropolitan Police Comr [2000] IRLR 720
Discrimination Claims

9. Most social media sites have terms of use that prohibit the
posting of any content that is threatening, harassing,
defamatory or otherwise unlawful. Presumably, then, any such
content would be voluntarily removed by the site after it is
brought to the site’s attention.[30] Not all sites, however,
prohibit the posting of content that may constitute confidential
information, but that is not copyrighted or may not rise to the
level of a trade secret or other legally protected information.
For example, MySpace’s terms of use prohibit the posting of
any content that “violates or attempts to violate the privacy
rights, publicity rights, copyrights, trademark rights, contract
rights or any other rights of any person.”[31] However,
Facebook does not appear to share this same view.
Facebook’s terms of use only prohibit the posting of content
that “infringes or violates someone else’s rights or otherwise
violates the law.”[32]
If, for instance, an employer complains to Facebook that a post
discloses confidential information pertaining to the company,
but fails to prove that the information is legally protected,
Posting Confidential
Information

10. There is nothing in law preventing an employer from looking at
publicly available material before offering an individual a job.
However, doing so is widely considered to be contrary to good
practice. Equal opportunities monitoring in the application
process is designed to remove from the substantive application
information about candidates’ ethnic background, age, sexual
orientation, religion, etc. Adopting a practice of checking online
profiles during selection would make a mockery of such efforts,
because that personal information would no longer be part of a
separate monitoring process.
In turn, a practice of checking website profiles could expose
the employer to discrimination claims, if it can be inferred that
the reason for not selecting an individual was a protected
characteristic revealed by the profile’s content. However, such
a claim would be very difficult for a claimant to prove – even
taking into the account the reversed burden of proof in direct
discrimination claims – especially since the employer is
unlikely to announce that it will be checking profiles as part of
the application procedure. If employers want to engage in this
Recruitment

11. If an employee publishes in a public forum comments that are
defamatory of his or her employer, action may be taken by the
employer in the same way as if the defamatory comments had
been published anywhere else, i.e. in libel proceedings. If the
comments otherwise damage the employer’s reputation or are
intended or likely to destroy the relationship of trust and
confidence between employer and employee, discipline and
dismissal will be legitimate courses of action. Nor will
employees be able to hide behind pseudonyms. Employers will
generally be able to obtain an order for disclosure from the
host website, disclosing the identity of a member who has
posted libellous material concerning the employer – see
Totalise plc v The Motley Fool Ltd and anor 2001 EWCA Civ
1897, CA.
Finally, where disciplinary action leads to dismissal, fairness
under S.98(4) ERA may have to be considered in the light of
the employee’s right to freedom of expression under Article 10
ECHR.
Defamation

12. The leading case on employers’ liability under discrimination law,
Jones v Tower Boot Co Ltd 1997 ICR 254, CA, establishes that the
‘in the course of employment’ test requires a broad
interpretation, giving those words their natural, everyday
meaning. So tribunals would be entitled to find that harassment
conducted through a social networking site used in the
workplace was within the scope of employers’ liabilities under the
discrimination legislation. In the absence of any clear guidance
from case law on the issue, it would be prudent for employers to
assume that such harassment potentially falls within the range of
conduct for which they may be held liable. Accordingly, policies
should make clear that online harassment will be treated as a
disciplinary issue in the same way as harassment by email or in
person.
Harassment is only unlawful under discrimination law if it is done
on one of the grounds protected by legislation, i.e. sex, race,
disability, religion or belief, sexual orientation or age. However,
harassment unrelated to any of the protected grounds may also
be unlawful if it satisfies the definition of harassment set out in
Vicarious Liability

13. A company that suspected one of its former employees of
having copied and retained confidential information by
uploading it to a professional networking site was granted
limited pre-action disclosure of information relating to the
employee’s account. However, requests for all client and contact
information in the possession of the former employee’s new
company were too broad and amounted to a ‘fishing expedition’.
Employers are well aware of the need to protect confidential
information when an employee moves to a rival. While civil
proceedings to enforce restrictive covenants and the contractual
duty of confidentiality assist in this regard, there is a constant
problem for employers: working out what confidential
information is in the employee’s possession. One string in the
employer’s bow is pre-action disclosure, provided for in Rule 31.16
of the Civil Procedure Rules 1998 SI 1998/3132 (CPR). This allows a
party which is contemplating but has not yet brought
proceedings to seek disclosure of documents in the other party’s
possession.
In the case reported below, the High Court considered an
Hays Specialist Recruitment (Holdings) Ltd and anor v
Ions and anor, High Court – Restrictive Covenants

14. Employers in the UK do not have an absolute right to monitor
employees’ use of the employer’s electronic equipment, and the
more intrusive and/or secretive any monitoring is, the more likely
it would be that such monitoring would be unlawful.[23]
Accordingly, employers may consider using spot checks rather
than ongoing monitoring, and setting flags so that any
monitoring just returns details as to when social media websites
are accessed, rather than monitoring the actual content viewed
or submitted.
Personal:
The UK employer cannot monitor electronically, but may
investigate and, if necessary, implement disciplinary proceedings
if there are productivity or other performance or conduct issues,
or if employees use social media through their own equipment to
act unlawfully – for example, by behaving inappropriately toward
co-workers.
The relevant legislation in the UK is the Regulation of
Right to Monitor

15. employers should look to their current electronic use policies,
email, Internet, BlackBerry, other PDA and cell phones, and
confirm that the policies
sufficiently broad to prevent, or at least limit, abusive use of
social media by the employees.
employee privacy, both on and off site,
as well as issues relating to workplace searches;
adherence to anti-discrimination and harassment law protection
of company trade secrets and other intellectual property tenets;
and prevention of defamation, tortious interference with
contractual relations or unfair trade practices.
The most prudent course to protect against liability
Employers should therefore consider including, as a standard
contract term, a provision by which the employee gives consent.
Employers should also have a clear and well-publicised
policymaking that establishes that such information would be
used in the event of an investigation as a step toward
demonstrating that such an interest does exist. Employers should
Recommendations

16. Yes, especially if the employee’s usage is in breach of the
employer’s e-mail and Internet usage policy (see previous
answer). When at work, employees should be working. So,
depending on the particular employer’s Internet policy, it should
come as no surprise to employees if they are disciplined for
excessive use of networking websites.
Yes and no. Employers may monitor what happens at work,
including use of the Internet. This is possible with or without
employees’ consent, but only if the workforce is notified clearly in
advance as to precisely what is being monitored. Such an Internet
usage policy is likely to simply refer to the amount of usage, or to
place restrictions on personal rather than business usage.
Monitoring what an employee actually writes online, by contrast,
would require more sophisticated monitoring equipment, and it is
questionable whether the benefits such monitoring would bring
to the business are worth the extra expense. Nonetheless, case
law suggests that so long as the extent of the monitoring is made
clear to staff, employers are entitled to go down that route –
Halford v United Kingdom 1997 IRLR 471, ECtHR.

17. We are a PR firm reliant on maintaining contacts with people
working in the media, and so we consider the contacts that our
employees establish to be essential to our business. Can we
require ex-employees to surrender contact lists created and
stored on a social networking site?
Possibly. If an employee uses a networking site as one of the
means by which he or she develops his or her professional
contacts, and especially if it can be shown that additions to a
contact list have been made at work, some commentators have
suggested that those parts of a networking profile consisting of
such professional contact lists may belong to the employer. This
view follows a recent High Court decision in which an injunction
was granted to an employer preventing a former employee from
removing and/or using those contacts stored in a database on his
employer’s e-mail system, over and above the personal contacts
that the employee had brought with him – PennWell Publishing
Ltd v Ornstien and others 2007 IRLR 700 (Brief 834).
However, a critical factor in the granting of the injunction was
that the information was stored on the employer’s computer and

18. Contact
www.employerslawyers.co.uk