The Supreme Court – FS Cairo (Nile Plaza) LLC v Lady Christine Brownlie
Recent research from the Institute for Employment Studies has highlighted the difficulties some employers experience when setting standards of behaviour for the increasing use of social networking tools (including Smart phones, internet, tweeting and blogging) in the workplace. This research prompted the Advisory, Conciliation and Arbitration Service (Acas) to produce practical guidelines for employers on how to respond to these challenges.
Acas considers the key challenges to be as follows:
• ‘Time theft’ – employees may use company computers during business time, for personal reasons, such as: sending personal emails, updating social network accounts or shopping online resulting in productivity issues and/or potential performance management issues. Acas reports that misuse of social networking tools costs the UK economy approximately £14 billion annually in "lost time".
• Defamation - employees could use social networking tools to post damaging comments about their employer, colleagues or clients;
• Health and Safety issues - many employees use personal social networking during breaks rather than having regulated breaks away from computers;
• Cyber bullying - bullying, harassment and victimisation can be conducted via social networking channels;
• Data Protection and Privacy Issues- employees could use social networking tools to divulge protected personal data or could claim that employer monitoring of their use of social networking breaches their right to privacy and/or Data Protection law;
• Employer liability - employers can be held responsible for their employee’s conduct outside of work; and
• Social exclusion and discrimination - advertising jobs by only using social media can exclude people without access to social media facilities and can risk putting people with protective characteristics at a disadvantage. Further, online “friendship circles” between colleagues can cause peer pressure and/or exclusion.
So, how can employers manage the impact of the challenges posed by social networking in the workplace?
Acas advises employers to draw up a policy on internet and social networking activity firstly by consulting with employee/union representatives. Employers should then draft and implement an appropriate policy, taking into account the consultation discussions and both the employees’ business and private use of social media. The policy should aim to help employees draw a line between their private and professional lives. Employers should then ensure they communicate their policy to employees and make the policy easily accessible to all staff.
The policy should provide clear guidelines of the employer’s expectations of acceptable and unacceptable behaviour and provide examples of personal views employees are permitted to express. It should clearly set out what behaviour will be monitored and the disciplinary process, including the consequences, of violation of the policy. Acas advises employers to take a common sense stance to regulating behaviour, to treat ‘electronic behaviour’ in the same way as ‘non-electronic behaviour’ and to ensure the response is proportionate to the perceived offence.
Further, by educating employees on relevant issues and setting out clear guidelines and examples, the policy should aim to limit the many business risks associated with social networking, whilst also exploiting the opportunities and benefits set out below.
• Employees can work flexibly and be available to work remotely at home and/or whilst travelling;
• Employees can respond to clients and colleagues promptly;
• Using social media to advertise jobs can save time and money;
• Social media can be used as a marketing tool to promote your brand and reputation; and
• It can help improve internal and external communication.
Points to consider
Employers should be aware of the following potential legal issues when drafting and enforcing their policy:
• Monitoring and enforcement - in order to monitor employee use of social media in the workplace, employers need to justify the use of monitoring and must show that the benefits outweigh any possible adverse impact. This can be difficult as monitoring employee use of social media can cause bad feeling amongst employees and can be time consuming. Therefore employers need to balance the effect of monitoring employees with the negative impact it may have on the business. Employers should also be aware that intrusive monitoring of employees can be illegal under the Regulation of Investigatory Powers Act 2000 and the Data Protection Act 1988.
• Fast –paced technology – this evolves quickly, so policies may soon become out of date and therefore need to be reviewed frequently. All internal policies should be updated to include relevant issues related to social networking. Consider updating your grievance and disciplinary, bullying and harassment, recruitment and Data protection policies as a start.
• Human Rights – confidentiality and privacy versus freedom of speech: under the Human Rights Act, employees have a reasonable expectation of privacy in the workplace and a right to freedom of speech. Therefore, employers need to be careful their policy is not too prohibitive.
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