30/06/2011

By Clare Atkinson, Associate at Commerce and Technology Department, Fox Williams LLP

In the recent case of Preece v JD Wetherspoons plc the Employment Tribunal found that a pub manager was fairly dismissed for gross misconduct when she made inappropriate comments about customers on Facebook, breaching Wetherspoons’ internet policy.

Ms Preece had been subjected to abusive behaviour by a group of customers whom she asked to leave the premises, including a torrent of verbal abuse and physical threats. She then received three abusive telephone calls, allegedly from the customers’ daughter. Ms Preece dealt with this situation professionally in person and on the telephone, but while working logged onto Facebook and wrote about the customers by name, complaining and swearing. Ms Preece did not mention the name of her employers or the pub.

Ms Preece explained that she had altered her privacy settings on Facebook and thus, thought that her comments were limited to a restricted group of school and work friends. However, this was found to be immaterial, as Ms Preece has signed a company policy stating that she would not contribute anything to Facebook which would lower the reputation of the organisation, staff or customers.

Whilst companies often invest resources in setting up and maintaining their online presence, they often fail to take account of their employees use of social networking and how this will affect their brand. Employees need to take positive action in order to protect their brand from being damaged by employees online and from having to engage in unnecessary and often costly, disciplinary and dismissal proceedings. What should employers do to protect their business from anti-social networking?

Put in place an IT policy

A thorough IT policy is key to managing employees’ use of internet. Whereas, traditionally, IT policies dealt with browsing of the internet, with the advent of social networking sites, IT policies need to be expanded to govern social media.

IT policies should specifically address social media and it may be worthwhile to consider a separate social media policy, or a sub-section of the IT policy dedicated to social media.

The policy should explain that employees’ use of social media can pose risks to the company’s confidential and proprietary information as well as its reputation. Furthermore, it can jeopardise the company’s compliance with its legal obligations.

The policy needs to be clear as to its scope, stating that it governs both business (if any) and personal use of social media, during office hours or otherwise. The policy should set out the types of comments that will be considered inappropriate, for example, disparaging comments about the business, customers or fellow employees.

Whist the policy should be specific enough to “bite” as appropriate, it must be broad enough to deal with the quick development in technology and changes in trends that means there may be a new “Facebook” in a few months time.

The consequences of breaching the policy should be set out, stating that disciplinary action may result, up to and including dismissal.

Educate employees abut the policy

Employees must be aware of the policy for it to be effective. This does not just mean ensuring that employees have read and signed to state their compliance with the policy, but taking active steps to educate employees.

Employees, like Ms Preece, are often not aware of the audience they are reaching or the effect that their comments may have on the brand or the business. Train employees, showing how a leak of confidential information can cost the company new business, or negative comments damage the brand.

Monitor

Once a business has established a social media presence it will need to maintain it. Part of the maintenance will be being aware of any breaches of the IT or social media policy.

Monitoring can be external, through searches, or internal through monitoring of employees. If internal monitoring will take place employers must make employees aware of this and, where necessary, obtain their consent. Employers must comply with relevant laws when engaging in monitoring in the workplace.

Follow through

Inevitably, it will be necessary to follow through on breaches of the IT or social media policy. Employers should ensure that they are proportionate in their approach and follow the normal rules. Ensure, also, that the terms of the policy are followed where these set out details of how breaches will be dealt with.

In the event of a claim, the Employment Tribunal will consider whether the response by the employer was proportionate in all the circumstances, so employers should consider the severity of the breach and its effect before taking any action.

Clare Atkinson is an Associate in Fox Williams LLP’s Commerce and Technology Department. She can be contacted by email at CAtkinson@foxwilliams.com or by telephone on 020 7614 2557.

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