Social Media Business Friend or Cyber Bully. Paul Gillen Head of Employment Law (Northern Ireland)

Transcription

1 Social Media Business Friend or Cyber Bully Paul Gillen Head of Employment Law (Northern Ireland)

2 What do we mean by social media? Quick Test what are:

3 What do we mean by social media? Technology that enables online users to interact and share information Only possible since the introduction of Web 2.0 in 2003 Examples include Facebook, YouTube, LinkedIn, Twitter, Blogspot and Blogger.com Internet does not respect national borders genuinely global phenomenon

4 What do we mean by social media? Twitter Statistics In February 2012 Twitter had 500 million members Twitter users send 175 million tweets each day 1 million accounts are added to Twitter every day LinkedIn Statistics Facebook Statistics In February 2012 LinkedIn had 135 million users There are 2 million companies on LinkedIn In February 2012 Facebook had million users 31% of Facebook users check in more than once a day

5 Friend...? BRAND AWARENESS INSTANT ACCESS TARGETED MARKETING/PROMOTIONS COST EFFECTIVE MARKETING/CUSTOMER FEEDBACK GLOBAL REACH PROFESSIONAL NETWORKING TEAM COHESION RECRUITMENT

6 or Foe? BULLYING AND DISCRIMINATION OUTSIDE USE LOSS OF CONFIDENTIAL INFORMATION OWNERSHIP/THIRD PARTY IP ISSUES RECRUITMENT DATA PROTECTION MONITORING LOSS OF PRODUCTIVITY CORPORATE REPUTATION BREACH OF PRIVACY LAWS

7 Managing the business risk? Challenges:

8 Privacy & Monitoring Monitoring social media use during employment Monitoring of work related use of social media employees must be informed to comply with data protection principles General snooping will breach data protection law Monitoring of non-work related social media usage outside of the work place more problematic Impractical and prohibitively expensive The implied duty of mutual trust and confidence

9 Privacy & Monitoring Code on data processing Part 3 Monitoring Sensitive data additional requirements Purpose, accuracy and proportionality Data security Making subject aware v covert Regulation of Investigatory Powers Act 2000 Flaxman v BG Group

10 Privacy & Monitoring Human Rights Act 1998 Article 8 right to a private life Private life includes social interaction and the right to develop relationships with others, even at work (Niemietz v Germany) If the employee put his information in the public domain, has he lost his right to privacy under Article 8 of the Convention (X v Y) Pay v UK Employee s duty of loyalty, reserve and discretion vs employee s right to privacy Article 10 freedom of expression Respondent entitled to limit this right in order to protect its commercial reputation (Crisp v Apple Retail UK Limited)

11 Productivity Will you allow use? Clear parameters Grant & Ross v Mitie BT research

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13 Reputation Taylor v Somerfield must do damage Whitham v Club 24 Ltd borderline damage Walters v Asda Stores clear guidance/ambiguity Preece v JD Wetherspoons customer damage Crisp v Apple Retail Ltd core values Barnes & Carter v Greenacres School - school

14 Getting it Wrong- Kenneth Cole- Fashion Designer.

15 Getting it Wrong Chrysler

16 Getting it Wrong Starbucks

17 Repairing the Damage Red Cross

18 Communication Tool Changed landscape The new watercooler Positive benefits Creation of deeper relationships in work Negatives Open communication more participants Blurred relationships work v personal Understanding of the impact? Sure, it s just a text Blakely v. Continental Airlines, 741 A.2d 538 (N.J. 2000) Harassment

19 Recruitment

20 Recruitment? Discrimination Information about sexuality, religion or other "protected characteristics not usually included in CV but accessible via social media Inferences may be drawn in absence of other clear reasons for rejecting a candidate Anonymous application processes would prevent this type of discrimination claim Breach of data protection laws? Under Article 11 European Data Protection Directive 95/46/E, where personal data is obtained from third party, the data controller must: inform the data subject of the purpose for which the data has been collected; inform the data subject of the categories of data collected; and give the data subject the right to correct any inaccuracies in the data Can an employer ask an employee for personal login details?

21 Recruitment Using social media in the recruitment process Allow the candidate the opportunity to comment on the information s accuracy Should inform candidates about the vetting and verification exercises The nature of the enquiries should be proportionate and justifed Should only use vetting to obtain specific information, not general intelligence gathering Should look at how to improve current recruitment process

22 You be the Judge... Consider the four scenarios Decide in each scenario whether the dismissal was fair or unfair Consider the reasons why the Tribunal reached the decision it did.

23 How to manage the business risk? Scenario One : Pub Manager dismissed for making comments about customers on her Facebook Preece v JD Weatherspoons Plc Scenario Two : Apple employee dismissed for making derogatory comments about Apple products on his Facebook Crisp v Apple Retail (UK) Limited

24 How to manage the business risk? Scenario Three : Employee publishes inappropriate comments on an unofficial fan forum website Lerwill v Aston Villa Football Club Scenario Four : Employee dismissed for commenting on Facebook that she worked "in a nursery" Whitham v Club 24 Ltd t/a Ventura

25 Bullying & Discrimination

26 Bullying & Discrimination

27 Bullying & Discrimination Definition Unwanted behaviour? Snowball? Cyber bullying Inclusion v exclusion Pressure to join; not permitted to join Scenario: Employee s phone is hijacked by colleagues who wrote on his Facebook status gay and proud Otomewo v The Carphone Warehouse

28 Bullying & Discrimination Vicarious Liability In work or outside work Reasonable Steps Defence Third Party Laibility

29 Bullying & Discrimination Think about: Employee to Employee Employee to Third party Third Party to Employee Employee to student Student to Employee Student to Student Student to third party

30 Case Study Teggart v TeleTech UK Limited [2012] NI Industrial Tribunal Facts Claimant s case Decision Learning outcomes NI Specifics Views on religion Views on political and social issues

31 How to manage the business risk? When will disciplinary action or dismissal be fair? HR Magazine Survey 2011

32 Remember You can t stop employees using social media, you can only guide them in how to use it appropriately and explain to them the consequences if they fail to do so Prohibit Social Media to: Defame or make disparaging comments regarding the employer, its affiliates, customers, clients, business partners, suppliers, vendors or other stakeholders Bully, harass or otherwise make derogatory comments about a colleague, manager or subordinate Say or do anything that may in any way damage the reputation of the employer or its affiliates

33 So.getting it right. Adopt a social media policy Deal with confidentiality and privacy Prevent harassment & bullying Link to other policies & procedures Train employees and managers Avoid the knee jerk..all or nothing

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