Social media in the workplace

© 2013 Morgan Cole LLP Expertise | Experience | Efficiency | Contribution

5th December 2013

Social media in the workplace

Rajiv JoshiAssociate

Expertise | Experience | Efficiency | Contribution © 2013 Morgan Cole LLP 2

Types of social media

• Facebook• Twitter• LinkedIn• YouTube• Internet forums• Blogs

http://www.morgan-cole.com/index.html


Common problems

• Derogatory or defamatory statements made by employees about their employer, customers, suppliers or products / services

• Derogatory or defamatory statements made by employees about co-workers Harassment Victimisation Discrimination Vicarious liability



Common problems

• Inappropriate levels of usage during working hours

• Damage to legitimate business interests

• Inadequate post-termination confidentiality obligations



Misconduct

• Derogatory or defamatory statements made by employees about their employer, customers, suppliers or products / services Implied term of mutual trust and confidence Implied duty of fidelity Express obligations

• Staff handbook / company policies



Misconduct

• Derogatory or defamatory statements made by employees about co-workers Disciplinary offences

• Beware vicarious liability

Social media policy• Training

Disciplinary policy Anti-harassment / bullying policy Internet / email usage policy Code of conduct policy / staff conduct policy



Misconduct

• Disciplinary considerations: Clarity of the social media policy The nature / significance of the employees role within the

organisation The severity of their offence / misconduct

• Mildly offensive comments may mean any resultant dismissal would fall outside the band of reasonable responses

Singh v London Country Bus Services (EAT 1976)• What can constitute a disciplinary offence

Mitigating factors; privacy settings and the employees work history



Misconduct

• Inappropriate levels of usage during working hours Limited usage or blanket ban?

• Acceptable usage: Recommended by ACAS but ultimately employer discretion Employee is under an implied duty not to misuse its employers

property Monitoring policy Employee expectation of privacy and Article 8, right to respect for

family and private life



Confidentiality

• Implied duty of confidentiality during employment

• Implied duty of good faith during employment

• No implied duty of confidentiality after employment (for information other than trade secrets) unless explicitly dealt with under contract



Confidentiality

• Contract of employment Restrictive covenants

• Garden leave NB, garden leave will usually reduce the restricted period in any

restrictive covenants

• PILON Restricts access to confidential information



Confidentiality

• Ownership of groups Privacy settings Whitmar Publications Ltd v Gamage and others [2013]

• Who owns the contacts? Hays Specialist Recruitment (Holdings) Ltd v Ions (High Court 2008) Contacts gained during the course of employment (Laura Kuenssberg)

• Other contact information Copyright and Rights in Databases Regulations 1997

• Cause of action if contacts could amount to a ‘database’• Penwell Publishing (UK) Ltd v Ornstein (2007)

• Social media policy Define what is meant by confidential information Deals with contacts gained during the course of employment



Conclusions

• Have a clearly defined social media policy Ensure it is linked appropriately to other company policies

• Provide adequate training

• Consider post-termination restrictions


Social media in the workplace

Technology

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