2. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Summary
Overview
Employee
use
and
areas
of
risk
for
employer
Reputa�onal
damage
Breach
of
confiden�ality
Harassment
Defama�on
Employer
use
and
main
areas
of
risk
Discrimina�on
Breach
of
data
protec�on
legisla�on
Tips
for
minimising
risks
for
employers
3. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Overview
4. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Overview
Facebook:
Over
1
billion
users
People
spend
over
700
billion
mins
per
month
on
Facebook
Facebook
2012
revenue:
$5.09
billion
Twi�er:
Over
500
million
users
LinkedIn:
Over
200
million
users
GREAT
for
developing
business
and
contacts
BUT
inappropriate
use
can
be
dangerous
“DON’T
SAY
anything
online
that
you
wouldn’t
want
plastered
on
a
billboard
with
your
face
on
it”
Chris
Pirillo
5. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Employee
Use
of
Social
Media
Reputa�onal
Damage
-‐
US
VP
of
Ketchum
tweeted
this
message
before
his
presenta�on
in
Memphis
to
Fedex,
one
of
its
biggest
clients
6. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Employee
Use
of
Social
Media
Reputa�onal
Damage
-‐
UK
Preece
v
JD
Wetherspoons
plc
2010
Tribunal
held
Wetherspoons
dismissal
was
reasonable.
Preece
posted
inappropriate
comments
about
two
customers
on
Facebook
whilst
at
work.
Wetherspoons
disciplinary
procedure
listed
examples
of
gross
misconduct
which
included
acts
commi�ed
outside
work
which
brought
the
Company
into
disrepute.
7. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Employee
Use
of
Social
Media
Reputa�onal
Damage
–
UK
Crisp
v
Apple
November
2011
UK
Tribunal
held
Apple’s
dismissal
of
retail
store
employee
was
reasonable.
Crisp
posted
derogatory
comments
about
Apple
on
Facebook.
Regarding
an
Apple
app
“MobileMe
f***ed
up
my
�mezone…….
Wake
me
up
at
3am?
JOY!!”
“Once
again,
f**k
you
very
much
work”
Tribunal
focused
on
Apple’s
Social
Media
policy
-‐
prohibited
commentary
on
Apple
products
or
cri�cal
comments
about
the
brand.
Held
no
expecta�on
of
privacy
even
though
Crisp’s
Facebook
could
only
be
viewed
by
friends
–
no
control
over
copying
and
passing
on.
8. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Employee
Use
of
Social
Media
Discrimina�on/Harassment
Employers
may
be
vicariously
liable
for
the
ac�ons
of
employees.
Harassment/discrimina�on
can
be
on
prohibited
grounds
such
as:
age,
sex,
disability,
race,
sexual
orienta�on,
religious
belief
or
poli�cal
opinion
Defence
-‐
“reasonably
prac�cable
steps”
to
prevent
the
discrimina�on/
harassment.
employee
not
ac�ng
“in
the
course
of
employment”
if
pos�ng
outside
the
workplace
(construed
narrowly)
9. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Employee
Use
of
Social
Media
Discrimina�on/Harassment
Teggart
v
Teletech
UK
Limited
(reported
April
2012)
NI
Tribunal
finds
dismissal
fair
and
reasonable.
Comments
on
Facebook
were:-‐
“Quick
ques�on
who
in
Teletech
has
A
not
tried
to
F**K?
She
does
get
around!”
A
asked
the
Claimant’s
girlfriend
to
ask
him
to
remove
the
messages
and
his
response
was:-‐
“A
can
go
and
f**k
donkey
d**k…….
LOL”
10. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Employee
Use
of
Social
Media
Discrimina�on/Harassment
Teggart
v
Teletech
UK
Limited
(reported
April
2012)
No
evidence
produced
by
the
Company
to
show
the
Company
was
brought
into
disrepute
BUT
harassment
of
a
colleague
sufficiently
serious
to
jus�fy
dismissal
for
gross
misconduct.
Held
-‐
right
to
privacy
(Ar�cle
8
of
ECHR)
was
abandoned
by
Teggart
when
he
put
the
comments
on
Facebook.
-‐
right
to
freedom
expression
(Ar�cle
10
ECHR)
must
be
exercised
responsibly,
hadn’t
happened
in
this
case.
11. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Employee
Use
of
Social
Media
Discrimina�on
/Harassment
Young
v
Argos
Limited
2011
Argos
Social
Media
Policy
prohibited
offensive
comments
amoun�ng
to
harassment.
Young
“liked”
comment
by
an
ex
employee
on
Facebook
saying
an
Argos
manager
“was
as
much
use
as
a
chocolate
teapot”.
Young
said
was
worst
year
of
her
15
years
with
the
Company.
Tribunal
held
dismissal
unfair
comments
not
serious
enough
to
amount
to
bullying
and
harassment,
no
more
than
workplace
gossip
or
rou�ne
cri�cism
of
an
employer.
12. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Employee
Use
of
Social
Media
Breach
of
Confiden�ality
Employee's
disclosure
or
misuse
of
confiden�al
informa�on
or
intellectual
property
online
could:
-‐breach
confiden�ality
between
employer
and
clients;
-‐create
embarrassment
among
employees
or
clients;
Who
has
ownership
of
an
employee’s
LinkedIn
Account?
Hays
Specialist
Recruitment
–v-‐
Ions
(2008)
Transfer
of
business
contacts
to
LinkedIn
account
could
be
a
breach
of
an
employee’s
du�es
of
confiden�ality.
Court
ordered
pre-‐ac�on
disclosure.
13. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Employee
Use
of
Social
Media
Breach
of
Confiden�ality
Stephens
–v-‐
Halfords
PLC
2010
Dismissal
held
to
be
unfair.
Stephens
set
up
Facebook
page
“Halfords
workers
against
working
weekends”.
Dismissal
not
within
band
of
reasonable
responses
Stephens
clear
disciplinary
record
Stephens
apologised
and
took
site
down
immediately
Stephens
had
been
absent
on
work
related
stress
14. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Employee
Use
of
Social
Media
Breach
of
Confiden�ality
Whitham
–v-‐
Ventura
2011
Whitham
dismissed
for
Facebook
comments:
“I
think
I
work
in
a
nursery
and
I
do
not
mean
working
with
plants”
and
then
later
“Don’t
worry,
takes
a
lot
for
the
b.......
to
grind
me
down”
Tribunal
held
dismissal
unfair:
comments
rela�vely
minor
no
evidence
comments
could
have
damaged
rela�onship
with
Volkswagen
15. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Employee
Use
of
Social
Media
Defama�on
What
is
defamatory?
derogatory
and
untrue
comments
that
undermine
the
employer’s
reputa�on
in
the
eyes
of
right
thinking
members
of
society.
Who
can
be
liable?
Employers
can
be
vicariously
liable
for
defamatory
statement
of
employee
during
the
course
of
their
employment
about
a
compe�tor
or
client.
Clay
Corpora�on
–v-‐
Co�er
2013
US
$700,000
pre
judgment
a�achment
order
against
brothers
of
ex-‐employee
for
Facebook
campaign.
Miss
Universe
–v-‐
Monin
$5
million
arbitra�on
award
against
Miss
Universe
contestant
who
posted
comments
saying
compe��on
was
rigged
16. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Employer’s
Use
of
Social
Media
Recruitment
Jobvite
2012
Social
Recruitment
Survey
-‐
92
%
of
U.S.
companies
have
used
social
media
networks
in
2012
to
recruit.
Can
a
prospec�ve
employer
use
informa�on
from
social
media
networks?
Paris
Brown
What
are
the
legal
risks?
discrimina�on
claims
Breach
of
data
protec�on
legisla�on
17. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Employer’s
Use
of
Social
Media
Breach
of
Data
Protec�on
Act
Data
Protec�on
Act
1998
(“DPA”)
regulates
the
processing
of
personal
data.
Employment
Prac�ces
Code
(“the
Code”)
includes
detailed
guidance
on
employers’
compliance.
Monitoring
employees
must
be
consistent
with
the
DPA
and
the
Code.
Adverse
impact
on
workers
must
be
jus�fied
by
benefits
to
employer.
18. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Tips
to
minimise
risk
1. Introduce
a
Social
Media
Policy
Policy
should
be
co-‐ordinated
with
other
policies
such
as
email,
internet
and
electronic
media
usage
and
disciplinary
policies.
Determine
scope
of
the
Policy
Address
whether
employees
can
use
company
equipment
to
access
social
media
sites
and
if
so
when
Emphasize
that
personal
use
of
social
media
should
not
interfere
with
work
Iden�fy
informa�on
that
should
not
be
disclosed
Reserve
the
right
of
the
employer
to
monitor
employee’s
social
media
ac�vity
while
at
work
or
while
using
company
electronic
property;
Prohibit
discrimina�on,
bullying
and
harassment
and
defamatory
comments.
19. SOCIAL
MEDIA
–
EMPLOYMENT
LAW
PITFALLS
Aisling
Byrne,
Associate
Cleaver
Fulton
Rankin
Limited
Thursday
9th
May
2013
Tips
to
minimise
risk
2. Training
Ensure
that
employees
tasked
with
overseeing
the
Social
Media
Policy
are
trained.
3. Enforcement
Apply
rules
consistently.
Act
REASONABLY.
4. Review
Review
policies
and
procedures
regularly.
