Avoiding employer liability: social media & email

Posted by : | 17th Oct 2013 | Employment law for HR Directors

Avoiding employer liability social mediaAre you concerned about your liability as an employer when your team use social media and email at work? This guide highlights the risks of employer liability when your employees are using social media or sending e-mails and gives some practical suggestions of how to minimise those risks. The huge growth in popularity of social media in recent years has created challenges as well as opportunities for every business. Blogs and similar media present a unique opportunity to get a positive image of a business into the public domain as well as providing an efficient way of sharing information, knowledge and best practice with others. The other side of the coin is that legal liabilities can arise from the use of social media by employees (whether for business or private purposes). It is increasingly important for businesses to know how this can happen and how to prevent problems from developing.

 

Risk to reputation when employees use Social Media

Information that is written on the internet or in e-mails can seriously damage your business’ reputation and the reputation of individual employees. Your employees could lose their job, be sued or face criminal charges and your business could be sued or fined.

 Stop and think before you click

  • Writing something on the internet or in an e-mail is exactly the same as writing on paper and, because of the lack of control of who might ultimately see it, sometimes worse. Your business cannot control what the recipient does with an e-mail.
  • Inappropriate information that is written online or in an e-mail can have severe financial repercussions for your business. It can also create serious personal and disciplinary issues for individual employees.
  • Even if your employees are e-mailing or using social media in their own time, they could still get themselves and your business in serious trouble.

A classic example of a Facebook post causing employer headaches

Take the recent case of an employee, Mr Teggart, who posted an obscene comment about the promiscuity of a female colleague on his Facebook page while at home.

Although the colleague was not Mr Teggart’s ‘friend’ on Facebook, the company was mentioned in the post and other employers were ‘friends’ with him.

A disciplinary hearing took place to discuss Mr Teggart’s alleged gross misconduct for harassment of a fellow employee and for bringing the company into disrepute. The charge of gross misconduct was sustained and Mr Teggart was dismissed.

Mr Teggart appealed and he argued that he had intended the comments to be a joke; he regularly mocked people on his Facebook postings! He had not intended to harass anyone. His appeal was dismissed and the finding of gross misconduct was upheld.

Mr Teggart complained to the Northern Ireland industrial tribunal that he had been unfairly dismissed and his rights under Articles 8, 9 and 10 of the ECHR had been violated. His appeal was dismissed.

The decision highlights the fact that inappropriate or offensive comments using social media may justify dismissal for gross misconduct even when they are made out of work and in the employee’s own time.  Whatsmore, it seems clear that employees will struggle to establish that they have a reasonable expectation of privacy in relation to comments made on Facebook. Although an individual’s Facebook page is only open to “friends”, it is not private as comments can be copied and passed on to others.

If you want to know what Mr Teggart actually posted, a full transcript of the case can be found here Teggart v TeleTech UK Ltd [2012] NIIT 00704_11IT (15 March 2012)

 

Social media and e-mail can be very useful tools for business but it is important to consider the risks attached to their use to ensure that they are beneficial for your business and not harmful to it or your employees.

 

 E-mails and internet postings can be used in legal proceedings

  • E-mails and internet postings can be used against your business in legal proceedings or other regulatory investigations and you may have a legal obligation to disclose them to the other party, even if it is not aware of them.
  • Your business should never delete e-mails relating to:
  • a legal dispute;
  • an investigation; or
  • a potential dispute or investigation.

This can be a complicated area and the duty to disclose information includes disclosure of any that could be harmful to your business in the course of legal proceedings. You may need to take advice should you find yourself and your business in this position.

 It is very difficult to delete e-mails and online postings

Simply deleting e-mails or internet postings will not necessarily solve the problem. Forensic IT equipment can still find supposedly “deleted” messages.

Do not be hurtful or spread rumours

  • Online content or e-mails that could be thought of as obscene, racist, sexist, bullying or hurtful should never be posted or sent. Your business can be held liable for discriminatory acts committed by your employees.

 

  • If a comment  is made about another employee online or in an e-mail that  amounts to harassment, your business could be liable even if the employee  was  using  their  own equipment when they made the comment.
  • Exaggerating or making false or inaccurate statements about another company or person online or in an e-mail could lead to your business being sued, even if the e-mail was only sent to one person.

Take care with confidential information

  • Where possible, avoid sending confidential information by e-mail. Your business should take legal advice on how the information can be best protected.
  • Any e-mail containing confidential information should be clearly marked as “confidential”.
  • If your business receives an e-mail that contains “dangerous” material (for example, another company’s trade secrets), you should take legal advice immediately.

Do not make a contract by mistake

  • A legally binding contract can be made by a simple exchange of e-mails.
  • Your business should make it clear if it does not intend to be bound by what is communicated in an e-mail.

Do not copy someone else’s work

  • Other people’s work should not be used in e-mails or online posts unless:
  • your business has permission from the original author; or
  • you know that it is not protected by copyright.

Do not send or view offensive or unknown material

  • Encourage your employees to carefully monitor what arrives in their inbox, especially if they do not recognise the sender or the title of the e-mail seems peculiar.
  • If there is a risk that an e-mail may contain a virus, it should not be opened and your IT department should be contacted immediately.
  • Make your employees aware that they could be disciplined or even dismissed for forwarding inappropriate e-mails or accessing inappropriate websites at work. In severe cases it could also be a criminal offence.

Avoid unproductive usage

  • Most businesses allow light personal internet and e-mail usage as long as it does not interfere with their employees’ duties. However, you should make sure your employees are aware that excessive, unproductive use of the internet and e-mails at work may be treated as gross misconduct for which they could be dismissed.
  • E-mails can often be a waste of time. Encourage your employees to think carefully before copying someone in on an e-mail, especially if there is a long chain of e-mails attached.

 If you have a problem with a member of staff sending material that is inappropriate or offensive, or posting information on social media which is inappropriate, remember to get a printed copy as you may need this as evidence within any disciplinary procedure. You may need to do this very quickly as social media sites can be efficient in removing inappropriate comments and, whilst this quick action by them is positive in many ways, it can destroy the evidence that you as a business need.

Also keep in mind that just because a problem has arisen on social media, you as the employer do not need to respond in ‘social media’ time. Take time to reflect on the best course of action and to ensure you follow a proper procedure rather than reacting immediately and incorrectly. Take advice from The Legal Partners.

It is important to consider having a specific policy within your business dealing with the use of social media and e-mail. Case law has established the businesses are in a much better position in disciplining staff for inappropriate use when they have clearly informed staff of what is and is not acceptable. The Legal Partners can help with this and have a Social Networking and Smartphone Policy available. Please contact us for further information.

In summary: avoiding employer liability when employees use social media and email

Do:

  • Adopt a social media policy to encourage appropriate employee use of social media.
  • Use the policy to prohibit employees using social media in ways that could damage the company.
  • Provide training to employees on the appropriate use of social media, and monitor for compliance.

Do not:

  • Allow employees to disclose or misuse confidential or proprietary information.
  • Permit employees to use social media to harass colleagues.
  • Impose unnecessary restrictions on employee use of social media.

We hope this article has been useful. Please contact us if we can help further:

Richard Mullett – 0208 334 8049 / Richard.Mullett@TheLegalPartners.com

Abigail Oprey – Abigail.Oprey@TheLegalPartners.com

This document is not specific legal advice. If you can share your business situation we can advise you on correct policy and process and minimise liability.

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