Social media through the employment lens. Sara Barrett Partner, Mills & Reeve. Deborah Coyne Principal Associate, Mills & Reeve

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1 Social media through the employment lens Sara Barrett Partner, Mills & Reeve Deborah Coyne Principal Associate, Mills & Reeve

2 Social networking

3 Today s agenda What is social networking? Legal issues for managers Discrimination and harassment Disciplinary action Case study

4 Types of social networking Examples: Blogs web log type of diary/commentary Facebook each individual has web page personal details, often photographs LinkedIn Network of professional contacts each with personal page Effectively an online database Twitter Microblogging tweets of up to 140 characters Individuals have followers

5 Advantages for the workplace Quick and easy communication Building professional networks Maintaining work contacts and relationships Identifying new recruits Screening/vetting applicants and employees (?) Can sometimes inform an internal process (eg, disciplinary proceedings, absence management)

6 Disadvantages for the workplace Working time wasted According to one employment site* survey 55% access social media while at work 1/3 spend more than 30 minutes a day 6% use sites for more than 1 hour of their working day Estimated cost of up to 14 billion p.a. to UK economy 10% of employees claimed it made them more productive *myjobgroup.co.uk

7 Management issues (1) Can raise complex and serious issues for managers Social media can blur the boundaries between work and home life between public and private life

8 Management issues (2) Inappropriate employee behaviour outside work Offensive language, images, behaviour Criticism of employer/management/employees Reputational damage Brand/image damaged Bullying and harassment of colleagues

9 Focus on legal issues Discrimination and harassment Discipline and dismissal

10 Discrimination and harassment

11 Types of discrimination Number of types of discrimination described by the Equality Act 2010 Direct discrimination and harassment most in focus when dealing with social media issues

12 Vicarious liability Employer can be liable for discrimination committed by an employee in the course of employment In the course of employment likely to be construed broadly Defence if employer took "all reasonable steps" to prevent the employee from doing the discriminatory act

13 What is harassment? Legal definition of harassment - Equality Act 2010 unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading or offensive environment

14 Is it harassment? Take into account the perception of victim the other circumstances whether it is reasonable for the conduct to have that effect on the victim Harassment because of association Harassment because of perception

15 Protection from Harassment Act 1997 (1) Employer liable for harassment by employees Oppressive and unacceptable conduct More than a one-off act Very wide definition of harassment Not limited to protected characteristics

16 Protection from Harassment Act 1997 (2) No reasonably practicable steps defence No cap on compensation Also possible to bring direct claim against a harassing individual Six years to bring claim

17 Disciplinary action

18 In the news Blogger sacked for sounding off The Guardian, 2005 Facebook remark teenager fired BBC, 2009 Teacher investigated over semi-naked Facebook photos Metro, 2010 Executive forced out of job over LinkedIn CV The Telegraph, 2012 Stockbroker sacked for tweeting that he hit cyclist Daily Mail, 2015

19 Discipline and dismissal Can employees be disciplined/dismissed for their online or private activities? Increasing instances of dismissals as a result of online activities Apply existing legal principles Social media conduct treated same way as other conduct outside the workplace

20 Fair dismissal For a dismissal to be fair There must be a fair reason (misconduct; capability; redundancy; illegality; some other substantial reason) and The employer must behave reasonably in dismissing for that reason Procedural fairness Band of reasonable responses

21 Procedure Procedure think about What is the employee accused of? What policies or procedures apply? Reasonable investigation Employee s side of the story Who is making the decision? Acas Code of Practice

22 The band of reasonable responses Inside: fair

23 The band of reasonable responses Unfair dismissal Fair dismissal

24 SOCIAL NETWORKING CASE STUDY

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