The Digital Workplace an Employment Law Perspective

Transcription

1 The Digital Workplace an Employment Law Perspective Barry Walsh, Partner, Employment and Benefits Unit Julie Austin, Associate, Employment and Benefits Unit 4 March 2015

2 Today s Briefing Impact on employment law and HR practices Important not to lose sight of massive benefits of the digital workplace for business But our digital world has introduced challenges for employers: Risks to confidentiality of know how and trade secrets New types of disciplinary concerns Reputational issues Questions about employee privacy Even defamation and criminal law concerns Recruitment Productivity Data protection issues Stats on Social Media Use by Adults IPSOS MRBI February pc - Facebook 28pc - Twitter 24pc - LinkedIn 18pc - Instagram 13pc - Pinterest 2

3 Today s Briefing Case Study Scenarios Scenario 1: Ownership of Social Media / BYOD practices - Barry Scenario 2: Inappropriate use of social media by employee - Barry Scenario 3: CCTV Monitoring by employers and covert recordings of HR meetings by employees - Julie Scenario 4: Data protection access requests for electronic data - Julie 3

4 Ownership of Social Media / BYOD practices (1) Our top sales manager resigned and is taking up employment with a direct competitor. He has a LinkedIn account which he developed during his employment with us with 500+ connections, many of them customers of our business. Can we stop him taking the account with him? He has also extensively used his own personal mobile devices for work related and customer communications. Is this a problem? 4

5 Ownership of Social Media / BYOD practices (2) Breach of confidentiality clause / restrictive covenant social media a new frontier Primarily a matter of contract and case law Express term in employment contract / social media policy gives employer the best protection No case law in Ireland on ownership of social media contacts Case law in other jurisdictions broadly favours employer but somewhat inconsistent and fact specific Question of ownership of LinkedIn contacts determined by many factors: Are there contractual clauses or a social media policy; Who created the account and why; Was it was created prior to employment; Has the employee has included the employer logo/brand; Are the contacts were primarily personal or professional; LinkedIn's own T&C provide that ownership of a LinkedIn user account remains with the individual. Broader question: is such employer protection really workable in practice in an ever changing digital world? Important for employers to clearly determine their corporate policy on this. 5

6 Ownership of Social Media / BYOD practices (3) Case Law guidance from UK Penwell Publishing UK High Court (2007) where an employee created and kept his contacts on employer s computer (Microsoft Outlook), that database, including business contacts made in previous employment, belonged to employer. Policy in place prohibiting private use of employer's system for private use. Hays v Ions UK High Court (2008) Hays argued that employee used LinkedIn network to approach clients for new rival agency and that the contacts constituted employer confidential information. Court ruled that contact details obtained during the course of employment are property of the employer. Court ordered disclosure of contacts. 6

7 Ownership of Social Media / BYOD practices (4) Case Law guidance from UK (continued) Whitmar v Gamage UK High Court (2013) LinkedIn group managed by employee for employer used by employee as a source of addresses for marketing a new business. Employer did not know what user name or password employee used for the group. UK court required employee to give company exclusive access to, management and control of the LinkedIn group. 7

8 Ownership of Social Media / BYOD practices (5) Case Law guidance from US Eagle v EdComm - Pensylvania (2013) US case. Former employee locked out of LinkedIn by company after termination of employment and contact details and profile changed. Court noted that company had failed to adopt clear social media ownership policies. PhoneDog v Kravitz - California (2011) US case. Mobile phone review website. Employee used a Twitter almost exclusively to promote employer business and obtained 17,000 follwers. Left employment and changed handle Former employer sued for $340,000 - $2.50 per Twitter follower. Case ultimately settled. 8

9 Ownership of Social Media / BYOD practices (6) Steps for employers in Ireland to protect social media contacts 1. Have a clear social media policy in plain English 2. Clarify ownership of account and contacts in contract of employment / social media policy 3. If restricting or regulating use of account post termination, set this out 4. Ensure definition of trade secrets / confidential information in contractual documentation includes social media contacts 5. Ensure restrictive covenants specifically provide that solicitation includes contacting/connecting to clients or employer contacts through social media 6. Employer should register or create the account for employees 7. Impose contractual requirement to provide log in details, passwords etc 8. Keep a log of employee passwords to LinkedIn and Twitter accounts and change the passwords when an employee leaves employment 9

10 Ownership of Social Media / BYOD practices (7) Bring Your Own Device Policies Advantages v disadvantages May be operational and cost saving benefits But employer owned devices give much better protection if employee leaves or device is lost - devices (including content and history) can be more easily monitored, recovered and inspected if employer owned If BYOD policy: Acceptable use requirement Security measures devices should be password protected and encrypted No data should be stored on the device cloud only Device should be capable of being wiped remotely Consider 3 rd party app to manage general policy setting e.g. GPS, passwords, blocking certain apps 10

11 Ownership of Social Media / BYOD practices (8) Our top sales manager resigned and is taking up employment with a direct competitor. He has a LinkedIn account which he developed during his employment with us with 500+ connections, many of them customers of our business. Can we stop him taking the account with him? He has also extensively used his own personal mobile devices for work related and customer communications. Is this a problem? 11

12 Inappropriate use of social media (1) An employee has posted a comment on her Facebook naming her manager and saying how can [company name] be operated by such morons! if our clients only knew how inefficient this place is and where their money is really going!! Can we / should we discipline the employee for making the post? 12

13 Inappropriate use of social media (2) Points for employer to consider: 1. Does it have a Social Media policy? What does it say? 2. Was the employee communication private or intended to be? 3. What is the impact of the communication - is there a likelihood of damage to employer s reputation or brand? 4. What duty does employer owe to other employees and is there a risk of claims by other employees as a result of the post, such as: Bullying & Harassment Claim Constructive Dismissal Claim Personal Injury Claim Defamation Claim 13

14 Inappropriate use of social media (3) Kiernan v A-Wear - Employment Appeals Tribunal (2008): Employee comments on Bebo page that was linked to employer s page and accessible to the general public Profanities regarding manager at company manager not personally named Employee tried to claim it was a private matter and played it down saying she was having a bad day EAT did not address privacy issue or challenge right to discipline employee in principle. It agreed she deserved strong censure and possible disciplinary action but that dismissal was disproportionate 14

15 Inappropriate use of social media (4) O'Mahony v PJF Insurances - Employment Appeals Tribunal (2010): Disparaging and personally offensive comments regarding company on employee s Facebook page Director deemed a bitch EAT agreed it was a breach of trust which justified dismissal 15

16 Inappropriate use of social media (5) Toland v Marks & Spencer - Employment Appeals Tribunal (2011): Conversations concerning a manager in the store Employee commented rather than initiated lol, ur mental (other person s name) and lol wats ur rds like? Company decision maker did not give evidence at hearing Tribunal deemed it no more than careless 18,000 award 16

17 Inappropriate use of social media (6) examples where dismissals upheld Preece v Wetherspoons UK EAT (2010) Bar employee fairly dismissed for posting derogatory comments about pub customers on Facebook. Employer HR policies very clear - stated that comments that lowers the reputation of the company or its customers were misconduct even if committed outside working hours. Privacy arguments were rejected as comments were held to be in the public domain. Teggart v TeleTech Northern Ireland EAT (2011) - Employee made Facebook comment about promiscuity of female colleague from home computer in his own time. A third party tipped off the employer. Company not brought into disrepute but UK Tribunal found that posts did amount to sexual harassment by one employee of another and were contrary to employer's disciplinary and code of conduct policies. Dismissal upheld. Weeks v Everything Everywhere Ltd - UK EAT (2012 ) - Claimant dismissed for making threats on Facebook to a colleague who had reported him for describing his place of work as Dante s Inferno. Social media policy warned employees to avoid making posts that could damage company s reputation. Dismissal was found to be fair. 17

18 Inappropriate use of social media (7) examples where dismissal unfair Trasler v B&Q Ltd UK EAT (2012) - Employee dismissed for gross misconduct for posting on Facebook from home that his place of work was beyond a f****** joke. Seen by a colleague and reported to employer. Tribunal held dismissal was unfair as relationship was not so undermined that dismissal was necessary. However, award reduced by 50% due to employee s contribution to his dismissal. Smith v Trafford - UK High Court (2012) - UK High Court held that a Christian employee was entitled to express his views about gay marriage on posted a link to a BBC news website article and on Facebook. Court held it was a "moderate expression" of views and did not bring employer into disrepute. Employer acted in breach of contract when it demoted him Game Retail v Laws UK EAT (2014) the first case in UK or Ireland involving Twitter. Employee followed 100 of his employer stores and 65 followed him. Various bizarre and very crude tweets. Initially held unfair as no proof tweets were seen by public. However, has been remitted on appeal. 18

19 Inappropriate use of social media (8) Summary of legal position & key issues A social media policy now one of the standard suite of employment policies prevention v cure No general employee right to privacy re social media posts if there is a sufficient proximity to their employment To safely impose disciplinary action employer must examine the impact of the activity on the business Remember always follow fair disciplinary procedures and consider proportionality of sanction 19

20 Inappropriate use of social media (9) An employee has posted a comment on her Facebook naming her manager and saying how can [company name] be operated by such morons! if our clients only knew how inefficient this place is and where their money is really going!! Can we / should we discipline the employee for making the post? 20

21 CCTV Monitoring & Covert Recordings (1) Bar Manager is suspected of stealing cash from tills. The employer installs a CCTV camera at the bar to monitor the employee. Footage confirms suspicions. Bar Manager is invited to a disciplinary hearing where he covertly records the hearing on his iphone. Employee is dismissed and subsequently tries to use the recording in his unfair dismissal case. 21

22 CCTV Monitoring & Covert Recordings (2) 1. Whether the employer is entitled to use CCTV to monitor employees? 2. Whether the employer can use CCTV footage as evidence in the disciplinary hearing/unfair dismissal case? 3. Whether the employee is entitled to use the iphone recording in the unfair dismissal case? 22

23 CCTV Monitoring & Covert Recordings (3) Whether the employer is entitled to use CCTV to monitor employees? CCTV images constitute personal data Therefore, key data protection principles which apply to gathering and using personal information apply equally to gathering and processing CCTV images In order for the monitoring to be lawful: 1. Must be justified and proportionate; and 2. Must have employee s consent (unless certain exemptions apply); and 3. Staff must be informed of existence of CCTV; and 4. Staff must be informed of purpose of the CCTV. 23

24 CCTV Monitoring & Covert Recordings (4) If principles not complied with, employee may refer matter to the Data Protection Commissioner (DPC) DPC Annual Report 2013 See DPC Guidance Note on CCTV usage 24

25 CCTV Monitoring & Covert Recordings (5) DPC Case Studies Case Study 6/ Gresham Hotel breached legislation by using covert CCTV footage to dismiss employee. Settlement reached. Case Study 10/ Employer used CCTV to record patterns of exit and entry on premises. Employer attempted to use logs for disciplinary purposes. Found to be in breach of legislation as employees were not informed of the existence of the CCTV or the purpose for which it would be used. Disciplinary proceedings discontinued. Case Study 9/ Westwood Gym breached legislation by monitoring administrator remotely using CCTV. Footage was intended to be used for security purposes and not for monitoring conduct. Employer told to remove disciplinary warnings. 25

26 CCTV Monitoring & Covert Recordings (6) Steps to protect your company: Make sure your handbook/contract: Notifies employees that they will be monitored; Sets out the purpose of the monitoring (to include performance and disciplinary matters); and Sets out how the monitoring will be carried out - , phone, CCTV, tracking devices on phones, cars etc. 26

27 CCTV Monitoring & Covert Recordings (7) Whether the employer use CCTV footage as evidence in the disciplinary hearing / unfair dismissal case? Where DPC makes a finding, employers will generally not proceed with disciplinary process. Employment Appeals Tribunal may find that use of CCTV footage was unfair rendering the dismissal itself unfair. Keegan v Dunnes Stores UD202/2012 Tribunal awarded 8,000 to deli worker caught eating food on covert CCTV. Overturned by Circuit Court. 27

28 CCTV Monitoring & Covert Recordings (8) Whether the employee is entitled to use the iphone recording in a subsequent unfair dismissal case? No specific rules for admissibility of covertly obtained evidence Generally a wide discretion if evidence is relevant and it would be proportionate to allow it, then it may be admitted 28

29 CCTV Monitoring & Covert Recordings (9) Case Law (UK): Chairman and Governor of Amwell View School v Dogherty UK EAT/0243/06 covert recording of the disciplinary hearing itself will generally be admissible but a recording of private deliberations of the disciplinary panel are inadmissible (save in special circumstances). Punjab National Bank v Gosain UK EAT/0003/14 private discussions of the panel during the adjournments of grievance and disciplinary hearings were admissible as evidence. Scott Kilday v MGM International (2014) Bra company ordered to pay 16k compensation for constructive dismissal for bugging employee s pot plant. 29

30 Data Protection Requests (1) Following her redundancy, an employee requests a copy of her personal data in accordance with the Data Protection legislation. We are a large company and have thousands of documents (mainly electronic on our system) that could fall within the request some of which relate to an historical allegation of bullying against the employee which was never investigated. How do we handle the request? 30

31 Data Protection Requests (2) What is a data access request? Data Protection Acts An individual can make a request for access to personal data held about them Companies obliged to supply a copy of the data to the individual within 40 days (unless certain exemptions apply) If you restrict disclosure, notify the individual in writing within 40 days and include a statement of the reasons for refusal. You must also inform the individual of his/her entitlement to complain to the DPC about the refusal. Not an employment specific law but has, over the years, become very relevant for employers Often used as a tool by an employee to leverage a settlement 31

32 Data Protection Requests (3) Exemptions to obligation to disclose: 1. Opinions given in confidence interpreted narrowly 2. Information about other individuals may need to be withheld or redacted 3. Professional legal privilege legal advice & communications with lawyers 4. Estimates of liability in respect of a compensation claim 5. Health data if that would be likely to cause serious harm to the physical or mental health of the data subject 32

33 Data Protection Requests (4) How much data are you required to disclose? Definition of personal data very broad Includes hard copy files and electronically stored data On strict interpretation of the Acts, obligation to disclose could include disclosure of all s where an individual is mentioned or named (save for s sent in the normal course of business) Extremely onerous No obligation to provide documents where disproportionate effort involved interpreted narrowly 33

34 Data Protection Requests (5) How to deal with a data access request a commercial view? Consider what the employee is really looking for Consider whether any exemptions apply If the request is too broad, ask the employee to refine the request If the employee is dissatisfied with the disclosure, consider further disclosure at that stage 34

35 Data Protection Requests (6) DP Commissioner & Enforcement: Generally seen as under-resourced Normally gives employers an opportunity to comply before it investigates a complaint Rare for it to become involved in adjudicating on employee access requests 35

36 Questions? 36

37 Contact Details Barry Walsh Partner, McDowell Purcell E: DD: Julie Austin Associate, McDowell Purcell E: DD: Follow McDowell Purcell across our social networks: Remember that these slides are for information purposes only and does not constitute legal advice. Case law is fact specific and readers should understand that similar outcomes cannot be assumed. Specific advice should always be taken in given situations. 37