Social Media Misuse

Photo by Sara Kurfeß on Unsplash

In a previous Blog (It happened outside work (or it’s my private life!) published on 7 February 2019), I discussed the importance of employers drawing up a clearly defined social media policy to which employees must adhere. It’s of critical importance that employers make employees aware of the existence of such policies and the potential consequences of breach. Generally speaking, employers will be rightly concerned that the misuse of social media platforms by employees may lead to reputational damage.

An interesting example of the type of reputational damage which can be caused to an employer’s brand by malicious or careless or thoughtless social media use was reported by The Independent in November 2018. A company in the Irish Republic was forced to take down a video on its Facebook site where an employee had used racially offensive images to promote Black Friday:

https://edition.independent.co.uk/editions/uk.co.independent.issue.251118/data/8650006/index.html

Misuse of social media can potentially be regarded by employers as misconduct. In really serious cases, the situation might be regarded as gross misconduct – a potentially fair reason for dismissal of the employee in terms of Section 98(4) of the Employment Rights Act 1996.

Right on cue, two stories have appeared about social media misuse on the BBC website this afternoon.

In the first story, Rugby Australia has announced that it intends to dismiss, Israel Folau for making homophobic comments on Twitter. Folau had been warned last year about previous offensive tweets that he had made. Clearly, he hasn’t learned his lesson and Rugby Australia is legitimately concerned about the reputational damage that such remarks may do to its image as an inclusive sports organisation.

A link to the story on the BBC News website can be found below:

Israel Folau: Rugby Australia ‘intends’ to sack full-back after social media post

Rugby Australia says it intends to terminate Israel Folau’s contract following a social media post by the full-back in which he said “hell awaits” gay people.
In the second story, Shila Iqbal, an actress who appears in the long running ITV soap opera, Emmerdale has been dismissed due to offensive tweets that she made some 6 years ago.
A link to the story can be found below:

Shila Iqbal: Emmerdale actress fired over old tweets

Shila Iqbal says she’s “terribly sorry” for using offensive language online six years ago.

Trawling through the case law archives

Since the previous Blog was published, I have been browsing through the archives and discovered a number of Employment Tribunal cases which involved alleged social media misuse.

Weeks v Everything Everywhere Ltd ET/250301/2012

In this case, the dismissed employee posted comments on Facebook which likened his work place to Hell (or Dante’s Inferno for the more cultured readership). The employer had given the employee a warning about this kind of behaviour, but he continued to post these types of comments on Facebook. The employer regarded this type of behaviour as causing it to suffer reputational damage.

Held: by the Employment Tribunal that the employer was entitled to dismiss the employee in terms of Section 98 of the Employment Rights Act 1998.

A link to the full ET judgement in the Weeks’ case can be found below:

https://uk.practicallaw.thomsonreuters.com/Link/Document/Blob/I42aaca4f0c5511e498db8b09b4f043e0.pdf?targetType=PLC-multimedia&originationContext=document&transitionType=DocumentImage&uniqueId=e621efe4-fda9-4b65-9f21-67c5e720fbf0&contextData=%28sc.Default%29&comp=pluk

Game Retail Ltd v Laws Appeal No. UKEAT/0188/14DA

The employee, who worked for Game, had set up a personal Twitter account. This account was followed by colleagues at approximately 65 other Game stores. The settings on the Twitter account were public, meaning that any person could read them. The employee’s tweets typically consisted of a wide range of disparaging and derogatory remarks. The employer dismissed the employee on grounds of gross misconduct.

Held: by the Employment Appeal Tribunal that the dismissal was fair in terms of Section 98 of the Employment Rights Act 1996. These remarks were being publicly broadcasted via Twitter (despite the employee’s assertion that they were private remarks) and these could cause the employer to suffer damage in terms of its reputation.

A link to the full ET judgement in the Game Retail case can be found below:

https://assets.publishing.service.gov.uk/media/592d608ee5274a5e510000fa/Game_Retail_Ltd_v_Mr_C_Laws_UKEAT_0188_14_DA.pdf

Creighton v Together Housing Association Ltd ET/2400978/2016

The employee was a manager of 30 years’ service with the Association, but found himself dismissed for tweeting disparaging remarks about colleagues. These tweets were 2 or 3 years old, but they came to light when another colleague took a grievance against him.

Held: by the Employment Tribunal that the dismissal (on grounds of the employee’s conduct) was fair in terms of Section 98 of the Employment Rights Act 1996. This may seem a harsh decision given that the employee had 30 years of service with his employer, but the Tribunal was clearly of the view that the employer had acted fairly and dismissal was in the reasonable band of responses for such behaviour. In some respects, this case has similarities to another Tribunal decision, Plant v API Microelectronics Ltd (ET Case No. 3401454/2016) 30th March 2016 which was discussed in the blog entitled It happened outside work (or it’s my private life!, which was published on 7 February 2019

Conclusion

The above 3 cases, once again, demonstrate the dangers of social media misuse – whether in the work place or outside. Employers are very foolish if they fail to put a clear social media policy in place. From the employees’ perspective, it is of critical importance that they are (a) aware of the existence of such a policy; and (b) they have read and understood its contents.

It will also be highly advisable for employers to update social media policies on a regular basis (especially as new platforms and technologies will continue to be developed) and to ensure that social media awareness is part and parcel of induction and training regimes.

Admittedly, there are pitfalls for employers: unauthorised or unjustified surveillance of employees could be viewed as a breach of privacy.

Expect this area of employment relations, to continue to generate some interesting case law in the weeks, months and years to come.

Postscript

Following on from the tweets posted by the rugby player, Israel Folau, a second rugby star is embroiled in a further homophobic social media row:

Israel Folau: RFU to meet England’s Billy Vunipola after he defended Australian’s comments

The Rugby Football Union says it does not support Billy Vunipola’s views after the England forward defended Israel Folau’s social media post claiming “hell awaits” gay people.

Copyright Seán J Crossan, 11 April 2019

Drunk and disorderly?

Photo by Bobby Rodriguezz on Unsplash

Misconduct

Several of my previous blogs have focussed on misconduct inside and outside the work place. In the most serious cases of (gross) misconduct, an employer could fairly dismiss an employee (Section 98(2)(b): Employment Rights Act 1996.

That said, employers are well advised to follow proper pre-dismissal procedures – usually in line with the latest ACAS Code of Practice on Discipline and Grievance at Work.

Summary (i.e. on the spot) dismissal can be an appropriate response to a breach of discipline by an employee, but I tend to caution employers against this. The eminent English judge, Sir Roger Megarry VC was quite correct to warn employers about the dangers of what they might perceive to be an open and shut case (see John v Rees & others [1969] 2AER 274, CD). It’s always better to be safe rather than sorry and by carrying out a procedure, the employer is minimising its exposure to risk i.e. the possibility of a successful unfair dismissal claim brought by the employee.

A typical disciplinary process usually consists of the following stages:

  • Stage 1: The investigation of the allegations
  • Stage 2: The disciplinary meeting
  • Stage 3: The appeal hearing

If the investigation uncovers clear evidence that the employee should be exonerated of all allegations of misconduct, the employer is legally bound to put a stop to the disciplinary process (see A v B [2003] IRLR 405; Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522; Miller v William Hill Organisation Ltd UKEAT/0336/12/SM [2013])

It is also important to note that the employer must set out the disciplinary charges as clearly as possible so that the employee can prepare her case. The employer cannot, under any circumstances, play fast and loose with the disciplinary charges as this may undermine the integrity of the entire disciplinary procedure (see Strouthos v London Underground [2004] IRLR 636 CA and Celebi v Scolarest Compass Group UK & Ireland Ltd UKEAT/0032/10/LA [2010]).

If, however, matters proceed to a formal, disciplinary meeting, the allegations must be put to the employee and the evidence which supports them. The employee in turn has the right to present her case to the disciplinary panel or manager taking the proceedings. In terms of the Employment Relations Act 1999, the employee has a right to be accompanied by a colleague or a recognised trade union representative.

Should the disciplinary meeting arrive at a decision to dismiss the employee for misconduct, it is extremely important to allow an appeal (see West Midlands Co-operative Society v Tipton [1986] 1 ALL ER 513). An appeal can lead to the dismissal being upheld or overturned; and it can be used to cure any defects in the previous stages of the disciplinary proceedings.

Discipline at work

It’s very common (indeed essential) for employers to have detailed codes of practice or discipline which regulate the behaviour of employees inside and outside the work place. The content of disciplinary codes should be clearly communicated to employees. For new employees, this could be carried out as part of their induction process. For existing employees, a regular series of training seminars or development events could accommodate this aim. The urban myth that what happened outside the work place is no business of the employer is that exactly that: a dangerous myth. If staff misbehaviour outside working hours causes serious reputational damage to the business or the organisation, the employer is entitled to treat this as gross misconduct and to use the ultimate disciplinary sanction of dismissal.

Examples of gross misconduct might include any of the following:

  • Alcohol and drug abuse
  • Acts of bullying & harassment
  • Fraud
  • Negligent performance of duties
  • Theft
  • Persistent late-coming

The above list is by no means an exhaustive one, but it covers some of the most common examples of gross misconduct.

As I have discussed in a previous blog, It happened outside work (or it’s my private life!) (published on 7 February 2019), employers do not have an automatic right to meddle in employees’ private lives. The right to a private life is protected in terms of Article 8 of the European Convention on Human Rights (as implemented by the both the Scotland Act 1998 and the Human Rights Act 1998). Employers will have to walk a very fine line between what is a legitimate act to protect their business interests and what would otherwise be unwarranted interference in the private lives of employees.

Lloyd’s of London

So, bearing all of the above in mind, it was with some interest that I read today that Lloyd’s of London, the financial giant, was introducing a new code of conduct for employees. This is in the wake of some unpleasant allegations being disclosed about the business – sexual harassment claims and drunkenness and drug taking.

Traditionally, the serving of alcohol at business meetings in the City of London or long, boozy lunches were as much a fixture of the Square Mile as was St Paul’s Cathedral. Alcohol oiled the wheels of commerce it was thought, but it also encouraged people to behave recklessly within a work environment.

It would seem that, in other work places, employees seem to know that they can’t turn up for work under the influence of drugs or alcohol, but Lloyd’s obviously feels that it still has a problem with these issues and they need to be addressed. Admittedly, two years ago, the organisation did ban employees from drinking alcohol between 0900 and 1700 hours.

The new code of conduct at Lloyd’s will apply not only to its 800 employees, but also to any person who holds a pass to its London HQ (potentially such 40,000 individuals). Anyone attempting to enter Lloyd’s HQ who appears to be under the influence of drugs or alcohol (or both) will be denied admission to the premises.

A link to the BBC News article about the new code of conduct at Lloyd’s can be found below:

Lloyd’s of London insurance has a new code of conduct, but not everyone welcomes it.

Lloyd’s of London calls time on drink and drugs

Photo by Boris Stefanik on Unsplash

Conclusion

Misconduct by employees – both in and outwith the work place – can be used by employers as a potentially fair reason for dismissal in terms of Section 98 of the Employment Rights Act 1996. Employers must ensure that employees clearly understand what is expected of them in terms of their conduct. It is very important, however, that employers carry out proper procedures when contemplating dismissal as the ultimate sanction for breaches of the disciplinary code. By implementing a new code of conduct, Lloyd’s of London is carrying out a risk management exercise i.e. spelling out what is and isn’t acceptable behaviour in and outside the work place. This is very wise given the bad publicity which Lloyd’s has experienced in the past regarding allegations of employee misconduct.

Copyright Seán J Crossan, 9 April 2019

The future will be here sooner than you think …

Photo by Fabian Blank on Unsplash

I often say to my students that it’s never too early to start saving for retirement. This sage advice usually causes some hilarity amongst a group of individuals who, typically, are still in their late teens.

The UK Parliament passed the Pensions Act 2008 which, eventually, would compel employers to enrol their qualifying employees in a recognised occupational pensions scheme.

Historically, many employees might work for an employer without paying into a proper occupational pension scheme. This meant that, when people retired, they were almost entirely dependent on the state pension (a not particularly generous welfare state benefit). The spectre of pension poverty became a worrying concern for many.

People who worked in the public sector (e.g. civil servants, teachers, lecturers, NHS employees) were often encouraged to join superannuation (pensions) schemes which the State had set up. Individuals working in the private sector might not be so lucky: when approaching their late 30s or early 40s, they might start to think about private pension arrangements. To their shock and horror, these individuals might be faced with the prohibitive costs of setting up a private pension. Had they be encouraged to do this in their late teens or early 20s, they would have paid a lot less towards the cost of their retirement (and a more secure financial future in their old age).

The ageing society

So, for some time now, we have been faced with the reality of an ageing population in the UK. The Government has raised the state pension age to 66 which means that many people will be working for much longer than their parents. There are plans to raise the state pension age to 67 between 2026 and 2028.

The written statement of the main terms of employment – which every employee must receive within 8 weeks of commencing work – must now contain information about an occupational pensions scheme (as per Section 1 of the Employment Rights Act 1996).

From this April (2019), changes to occupational pensions schemes will mean that qualifying employees must contribute more towards their retirement (up from 3 to 5%), but employers must also pay more towards the scheme. For employers, setting up an occupational pensions scheme is a legal duty – even if you employ one qualifying individual only. Employees who earn less than £10,000 per year are not automatically enrolled in an occupational pension scheme.

A link to an article about the imminent changes to occupational pensions can be found below:

Ten million people face higher pension payments

Photo by Fancycrave on Unsplash

A bigger chunk of wages will now be automatically diverted to a pension, but employers will put in more too.

A link to the UK Government’s pension regulator website providing more information on pensions for employees and employers can be found below:

https://www.workplacepensions.gov.uk

Copyright Seán J Crossan, 6 April 2019

Employment contracts: read them or weep!

cytonn-photography-604680-unsplash.jpg

Photo by Cytonn Photography on Unsplash

In Chapter 6 of Introductory Scots Law, I examine the various sources of the employment contract which include, amongst other things:

  • The written statement of the main terms and conditions of the contract (as per Section 1 of the Employment Rights Act 1996)
  • Employee handbooks (e.g. available on employer’s intranet)
  • Employer’s policies and codes of conduct (e.g. disciplinary codes)
  • EU Laws, Acts of Parliament and statutory instruments (e.g. ERA 1996, Equality Act 2010, TUPE Regulations 2006 , Equal Treatment Directives)
  • Judicial precedent and the common law (e.g. Walker Northumberland County Council 1 AER 737)

So, it was of interest when I saw an article in The Independent this weekend (Saturday 9 February 2019) discussing the importance of examining what employees should be looking for before they agree a new contract. According to the article, no less than 27% of lawyers fail to read their contracts properly before signing a contractual document or agreeing to new terms!

Just remember, of course, that the definition of an employment contract (i.e. a contract of service) can be found in Section 230 of the Employment Rights Act 1996.

A link to the article in The Independent can be found below:

“What to check for in your contract before taking a job”

The UK Government’s Department for Business, Innovation & Skills also has a useful link to a blank template (absolutely free of charge) which provides employers with access to the written statement of the main terms and particulars of employment (so no excuses small businesses!):

Copyright Seán J Crossan, February 2019