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In this issue of Employment Write:

In this edition of Employment Write we focus on the use of social media in the workplace and the issues that employers now more frequently face. We will also summarise important changes to employment law due to come into force during this year.

Social Media at Work

The use of social media is extremely widespread and usage increases on a daily basis. Facebook alone has about one billion people using the site each month. The number of companies using social media for recruitment purposes and networking purposes is also increasing.

It is therefore essential that employees are mindful of what they post on social media sites and that employers put in place strategies to ensure that risks are managed. Social media sites such as Facebook, LinkedIn, Twitter and other blogging sites enable communication on an unprecedented and often very public scale. With this comes new risks for employers to anticipate. Potential issues include:

  • Reputation: The effect on the reputation of the employer when an employee uses social media networks inappropriately;
  • Confidentiality: Confidential and commercially sensitive data being disclosed on social media networks;
  • Discrimination, harassment and bullying complaints: For example, if an employee posts, on a social media network, discriminatory comments; and
  • Low productivity and performance: Employees spending time on social media networks when they should be working.

Over the past couple of years, we have seen more Employment Tribunal cases which involve social media networks, in particular, an employee’s conduct on Facebook. Some examples:

Wetherspoons’ Case

The well-known pub, Wetherspoons, became involved in Employment Tribunal proceedings when the employer dismissed an employee (Ms Preece) after a customer complained about offensive comments Ms Preece had posted on Facebook. Wetherspoons dismissed Ms Preece for gross misconduct on the grounds that:

  • the comments damaged the reputation of Wetherspoons; and
  • there was a fundamental breakdown of trust and confidence between Ms Preece and Wetherspoons.

The Tribunal found that the dismissal was fair. In this case, the Tribunal placed great emphasis on the following:

  • that Wetherspoons had a clear dismissal and disciplinary policy which specifically included as an example of gross misconduct “acts committed outside work which either had an adverse bearing on the employee’s suitability for the job, amounted to a serious breach of trust, affected employee or customer relations or brought the Wetherspoons’ name into disrepute”; and
  • that Wetherspoons had a clear email and internet policy which specifically stated that a “failure to comply with the policy would amount to gross misconduct”. The policy also reserved Wetherspoons’ “right to take disciplinary action if the contents of any blog including Facebook, were found to lower the reputation of the organisation, staff or customers and/or contravene the Company’s equal opportunity policy”.

This case is helpful to employers as it provides some clarification as to how to deal with inappropriate use of social media outside of work. It also stresses the importance of having clear policies in place to manage an employee’s use of social media.

Apple’s case

The well known technology company, Apple, was subject to Employment Tribunal proceedings when it dismissed an employee, Mr Crisp, for posting comments criticising Apple and its products on Facebook. One of Mr Crisp’s colleagues reported Mr Crisp to Apple. Mr Crisp was dismissed for gross misconduct. The Tribunal found that the dismissal was fair notwithstanding the fact that Mr Crisp’s Facebook page was private.

Mr Crisp had been warned by Apple that protecting Apple’s image was a ‘core value’ and that making adverse comments about the company would be treated as gross misconduct. The Tribunal noted that, by virtue of the nature of social media, it is extremely easy to copy and re-post comments, increasing the potential audience. It did not matter that Mr Crisp had limited access to the comments to his Friends, including his good colleague!

Employees should not expect any right to privacy in relation to posts, blogs, tweets etc on social media networks as such posts are easily accessible and further publication is largely uncontrolled. Therefore, unacceptable conduct on networks such as Facebook or You Tube could lead to disciplinary action regardless of whether an employee has put in place privacy settings on their social media page.

In Mr Crisp’s case, Mr Crisp had made direct comments about Apple and its products. However, other recent case law has shown that employers need to be cautious when dismissing an employee for posting a comment on social media networks where the identity of the employer is not disclosed.

Trafford Housing Trust’s Case

The High Court in this case held that a Christian employee was entitled to express his views about gay marriage on Facebook and that doing so did not constitute misconduct. The Court held, amongst other things, that the employee:

  • was not using Facebook for work-related purposes, despite the fact that many of his Facebook friends were colleagues;and
  • did not identify his employer so did not necessarily damage the employer’s reputation.

This case can be easily distinguished from the Apple case, as the employee in the Apple case made specific comments about Apple and its products. The case highlights the importance of reviewing all of the evidence and considering whether the employee has, in fact, brought the company into disrepute by posting a comment on a social media network.

Employers are best advised to remember that assumptions should not be made about employee’s conduct simply because it involves the use of social media. In using social media an employee’s conduct is unusually public and recorded in writing or graphics and so the potential consequences of inappropriate conduct are aggravated. It remains the case however that employers must investigate alleged misconduct, consider all of the circumstances and ensure that the response is reasonable in all of those circumstances.

Social Media Policy – Does Your Business Need One?

The potential for inappropriate public comments to damage reputation is one of the more obvious risks in employees using social media. As we mentioned at the outset, employers face other potential consequences such as diminished productivity and issues relating to confidential and commercial information.

An outright ban on use of social media is likely to be counter productive and unpopular and cannot, in any event, prevent employees using social media sites outside of work. A more common approach is to implement a clear policy which sets out clear guidelines on acceptable use for employees when using social media especially at work. This would include, for example:

  • setting parameters about time spent using social media sites in the workplace and setting expectations around what is reasonable;
  • ensuring postings made on behalf of the employer are approved by a responsible person;
  • requirements for employees to make clear whether they are posting on their own behalf or that of the employer;
  • ensuring that appropriate standards are respected in relation to business contacts and other employees;
  • clarifying employer rights to access and monitor use of social media.

Whilst it is impossible to remove the risks associated with use of social media postings, a policy will certainly assist in minimising those risks and managing the employer’s response. However, having a policy, in itself, will not be enough to minimise the risks. Employers should ensure that:

  • the policy is communicated to the workforce;
  • managers are trained on how to enforce the policy; and
  • the policy connects with the employer’s other policies (such as disciplinary and grievance policies).

Next Steps: Our Recommendations

The trend towards use of social media, including in a business context, is unlikely to abate and employers need to accept that use of social media has become a feature of business as usual and adjust working practices accordingly. In addition to practical steps such as appropriate monitoring, we recommend the following actions for employers:

  • introduction of an ‘acceptable use of social media’ policy;
  • review of ‘acceptable use of IT’ policy;
  • review of contracts of employment (in relation to protection of intellectual property, confidential information and trade connections);
  • review of disciplinary and grievance procedures;
  • review of anti-harassment, bullying and equal opportunities policies

with a view to ensuring that employment documentation is consistent and supports the employer’s ability to effectively manage the use of social media and its potential consequences.

Employment Law Reforms 2013

The Government’s ‘red tape challenge’ is set to bring more changes to employment law this year.

As of 1 February 2013, the limits on Employment Tribunal awards increased as follows:

Compensation Limit Previous Figure Figures from 1 February 2013
The cap on a week’s pay (used, for example, for
calculating statutory redundancy pay and the basic
award in unfair dismissal cases)
£430 £450
The maximum compensatory award for unfair dismissal
(*see also Summer 2013 below)
£72,300 £74,200
The minimum basic award in cases where the dismissal
was unfair by reason of health and safety, trade
union activities etc
£5,300 £5,500
Limit on amount of guarantee payment payable
to an employee in respect of any day
£23.50 £24.20

Other key dates and proposals

March 2013:

the following changes will be introduced:

  • increasing the right to parental leave from 13 weeks to 18 weeks per parent per child;
  • extending the right to request flexible leave to agency workers on return from parental leave;
  • removing employers’ potential liability for harassment by a third party;
  • abolishing discrimination questionnaires; and
  • revised ‘fit note’ guidance for GPs, employers and individuals to emphasise the importance of assessing an individual’s health condition in relation to work in general and not just for one specific role.

April 2013:

the following changes will be introduced:

  • reducing the requirement for a 90-day consultation period to a 45-day consultation period for collective redundancies where 100 or more employees are affected. Employees on fixed term contracts which expire on their due date will be excluded for the purposes of calculating the number of affected employees;
  • a new ACAS Code will be produced which will address the meaning of an ’establishment’ for the purposes of consultation on collective redundancies;
  • the new Employment Tribunal Rules of Procedure will be introduced. The Government has not yet published its response to the consultation on the proposed new rules. Therefore, it is unclear at this stage to what extent the proposals will be adopted (watch this space!);
  • amendments to the Employment Rights Act 1996 so that an individual cannot bring a whistleblowing case relating to a breach of their own contract that is not in the public interest, and
  • the Finance Act will be amended in anticipation of the proposed new ‘employee shareholder’ status. The proposal includes that employees will waive certain rights such as unfair dismissal and statutory redundancy rights in return for shares worth at least £2,000. Any gains up to £50,000 on the shares will be exempt from Capital Gains Tax. There is no confirmed date in relation to the other changes required in order to introduce this new employee status.

Summer 2013: Further Changes:

Unfair Dismissal

• *The unfair dismissal compensatory award will be capped at the lower of one year’s pay and the maximum compensatory award.

Early Conciliation

  • The Government will introduce a new mandatory ‘Early Conciliation’ period to be operated by ACAS. The Claimant must submit an Early Conciliation Form to ACAS in all employment disputes (subject to very few exceptions). Once the Early Conciliation Form has been submitted the clock stops on the limitation period to file an ET1 Form for up to a month (which can be extended by two weeks) while discussions through ACAS take place. ACAS must issue an EC Certificate before Employment Tribunal proceedings can be issued.

Employment Tribunal Fees

  • Employment Tribunal Fees are proposed to be introduced around summer 2013. However, no specific date has been confirmed. The level of fees is, in our view, relatively high and perhaps likely to affect the number and nature of claims made.
Compensation Limit Previous Figure Figures from 1 February 2013
Level 1 claims – straightforward claims such
as unlawful deductions and statutory redundancy pay
£160 issue fee £230 hearing fee
Level 2 claims – most other claims including
unfair dismissal and discrimination claims
£250 issue fee £950 hearing fee
Employment Appeal Tribunal £400 appeal fee £1200 hearing fee
Application Fees – various and including, for example: £60 for an application to dismiss proceedings following
settlement; and up to £600 for judicial mediation
  • The fees are payable by the Claimant although a remission scheme will be introduced for Claimants who can show that they cannot afford fees. The hearing fee will be payable four to six weeks before the hearing. Employment Tribunal Judges will have a power to order the unsuccessful party to reimburse fees paid by a successful party, although this will be at the Judge’s discretion rather than automatic.

Pre-Termination Agreements

  • New rules on pre-termination negotiations will be introduced to the effect that settlement offers will be inadmissible as evidence to an Employment Tribunal in any subsequent unfair dismissal claim (provided that there has been no ‘improper behaviour’ by either party). However, settlement offers will remain admissible as evidence to an Employment Tribunal in other complaints such as contractual disputes and discrimination complaints.

Settlement Agreements

  • Compromise Agreement will be replaced by Settlement Agreements. Employees will still be required to obtain independent legal advice. There will be a Code of Practice and Guidance issued. The Code will, amongst other things, include: (a) draft letters; (b) an optional settlement agreement; and (c) define ‘improper behaviour’.

Also during 2013

  • The Government intends to introduce financial penalties for employers who lose at Tribunal. Tribunals will have the discretion, for example where there are aggravating features, to impose a penalty on an unsuccessful employer of 50% of any financial award made to the Claimant, subject to a minimum of £100 and maximum £5000. Where there is a non-financial award the Tribunal will be able to give it a notional financial value. The penalty with be reduced by 50% if the penalty is paid within 21 days.

October 2013

Changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 will be introduced and are likely to include:

  • removing the strict requirement for employer liability information;
  • providing that ‘entailing changes in the workforce’ for the purposes of establishing an ETO defence to claims of unfair dismissal will include a change in location of the workforce;
  • enabling transferees to consult with transferring employees in relation to collective redundancies prior to the transfer.
  • It is also intended that the Service Provision Change provisions (under TUPE) will be removed but it is recognised that this change will require a lead in time before it can be fully effective and so this is unlikely to be in October.

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