Employment Law and Employees' Misuse of IT and Social Media – An Update for Employers

Partner Sue Dowling, in our Employment Law team, looks at the dismissal of employees for misconduct resulting from the misuse of IT and social media in the workplace.

Social media or internet misuse may be misconduct, amounting to a potentially fair reason for dismissal. In some cases it may be gross misconduct, leading to grounds for summary dismissal (without notice).

Employers need to consider whether the employee’s misconduct affects the employment relationship, or their ability to do their job. Where negative social media posting is involved, conduct may damage the employer’s reputation, even if it happens outside of work.

Excessive internet use

It is essential that an employer has a policy that clearly sets out the standards of conduct expected of an employee in terms of use of electronic communications systems. For example, if personal internet use is permitted at work, the employer should indicate for how long and at what times this will be permitted.

In Scarlett and another v Gloucester City Council, two employees successfully claimed unfair dismissal after being sacked for excessive personal internet use. The employer had an informal policy in place that personal use could take place outside of ‘core hours’, and had treated previous infractions by other employees with less serious sanctions.

Inappropriate emails

Any policy in force (and the sanctions applied to employees for breaches of it) should be applied consistently and fairly. If the employer indicates in its policy that offensive jokes and images should not be circulated in the workplace, but then permits some employees to send such images, singling out and disciplining just one employee for such conduct is likely to be unfair.

In Mason v CXC Advantage Ltd, a tribunal held that an employer had been entitled to dismiss an employee who had sent "saucy" emails to an employee of a client of the business. Although the emails had been sent mostly from her personal email address, they had resulted in the business losing that particular client when the other employee's manager discovered them. Although a lesser sanction could have been imposed, the tribunal found that dismissal was still within the band of reasonable responses, given the terms of the employer's staff handbook which specifically dealt with, and prohibited, this kind of conduct.

Pornography

Employers should avoid a knee-jerk reaction to cases involving pornography, for example failing to afford the employee the opportunity to explain their behaviour or to challenge the disciplinary findings. In Royal Bank of Scotland v Goudie, the EAT upheld a tribunal's finding of unfair dismissal on the basis that an employee dismissed for sending pornographic images had not been shown the company's internal matrix used to categorise levels of offensiveness, which had a bearing on the circumstances of her case.

Downloading unauthorised software

In Fettes v Dundee Cold Stores Ltd, the claimant was caught playing a computer game at work and was disciplined for downloading unauthorised software onto his computer, contrary to the staff handbook. He claimed that he had not downloaded it himself but had simply found it on his computer. An investigation showed two unauthorised games in the computer that had been downloaded at times when he had been at work and logged into the computer. The claimant argued that at least six colleagues had access to his password and computer.

The employer's investigation showed that only one of those colleagues had been present in the office on both of the occasions on which games had been downloaded.

The employer accepted the colleague's evidence that the claimant's office door was always locked, that he had to request a key when he needed to get in there, and that he had no knowledge of the games. The tribunal found that the decision to dismiss the claimant for downloading software onto his computer was within the band of reasonable responses. It took into account the fact that the employer's staff handbook stated that it was serious misconduct to download unapproved software, and the potentially serious consequences for any business if a virus or spyware were to get onto its computer system.

Social media

Social media is the term used for internet-based tools used on computers, tablets, and smart phones to help people keep in touch and enable them to interact. It allows people to share information, ideas and views.

Social media can affect communications among managers, employees and job applicants; how organisations promote and control their reputation; and how colleagues treat one another. It can also distort boundaries between home and work.

Some estimates report that misuse of the internet and social media by workers costs the UK economy billions of pounds every year and add that many employers are already grappling with issues like time theft, defamation, cyber bullying, freedom of speech and the invasion of privacy.

In Whitham v Club 24 Ltd, an employment tribunal held that the dismissal of an employee, for making derogatory comments (outside working hours) about her workplace on Facebook, was not reasonable in all the circumstances and was therefore unfair. The comments were "relatively minor" and there was nothing to suggest that the employer's relationship with a key client had been harmed or jeopardised as a result. The employer had failed to take into account the employee's exemplary employment record and mitigating circumstances. While the risk of harm to an employer's reputation will be evident from the content in most cases, this case highlights that an employer may need to make efforts to assess the potential damage in borderline situations.

Statements made online often make claims or allegations that are potentially damaging because they lower the subject in the minds of those reading the content. Examples include criticisms of a person's actions or character, or unsupportable statements regarding a business's services or ethos. Online trolling or cyber-bullying can be criminal offences, for which there are serious consequences. Additionally, if content adversely affects a person's or organisation's reputation, then there may also be a cause of action under the law of defamation.

Employers should develop a comprehensive social media policy setting out what is and is not acceptable behaviour at work when using the internet, emails, smart phones, and networking websites. The policy should also give clear guidelines for employees on what they can and cannot say about the organisation. Any policy should be clear throughout about the distinction between business and private use of social media. If it allows limited private use in the workplace, it should be clear what this means in practice.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.