One of our workers has been caught sharing content from extreme far-right websites on Facebook. We’ve pulled him up on it and he’s saying they’re not his views, and he was just sharing it to gauge reaction amongst his friends, “to weed out the crazy ones”. Obviously we don’t want to be associated with extremist opinions, but can we do any more than just take him at face value – how much can we monitor what he posts online?
Manager concerns about employee use of social media are understandable.
However, the Employment Tribunal case law covering actions taken against employees’ social media misdemeanours demonstrate that employers should adopt a cautious approach.
A key principle is that any steps taken should be fair and reasonable in the circumstances; line managers should consider the true impact of a social media transgression to the business and be careful not to overreact.
The key to this particular case is whether the posts made by the employee in question have caused a real and tangible reputational risk to the employer’s business.This will depend on how visible the employee’s Facebook account is to the public and whether it associates him to the employer and who might have seen the posts.The actual nature of the posts will be relevant also.
Of further relevance is whether the employer has a social media policy in place and whether this covers social media activity outside the workplace.
Employers should ensure a clear and comprehensive social media policy is in place to cover any areas of concern.This should be communicated to all staff, possibly through a training activity to ensure it is understood.
Within any policy it should clearly state that on any personal, publicly viewable social media account, the individual’s employer must not be identifiable.If it comes to the employer’s attention that this individual has breached this policy moving forward, then disciplinary action could be considered.Any such procedure would need to follow disciplinary policies and the ACAS code to ensure it is reasonably investigated and procedural fair.
When it comes to monitoring staff, this is a very complex area of law that invokes both the right to private life under article 8 of the Human Rights Act 1998 and data subject’s rights under the Data Protection Act 1996.
Case law and ICO guidance have suggested that blanket monitoring of staff, in any regard, would not normally be compliant with the legislation. An employer would normally require there to be an ongoing investigation to continually monitor an employee.
Our manufacturing team are a small, close-knit bunch, working in close proximity in a hot and stressful environment. Tempers often flare and words get exchanged, but quickly get forgotten about. However, recently, a new member of staff has joined us, and he has come to the management team with accusations of bullying. When we spoke to the rest of the team, they wrote it off as ‘banter’ and ‘getting the new guy indoctrinated to our way of working’. What does the law say about the difference between bullying and banter?
From a purely legal perspective, when it comes to allegations of verbal bullying, employers are exposed to two main areas of risk - the risk of a constructive dismissal claim and the risk of a claim of harassment under the Equality Act 2010.
Taking the latter first, all employees who have what the law terms ‘protected characteristics’ are protected against any unwanted conduct that creates a hostile, intimidating, humiliating or degrading working environment.
The law does not make a distinction between conduct not intended to actually hurt the recipient (banter) and actions undertaken maliciously.It is the actual effect on the employee that counts, not just the perpetrator’s intent.
There are nine protected characteristics, - age, sex, disability, gender reassignment, pregnancy or maternity, marriage or civil partnership status, race, religion or belief and sexual orientation.
An employer must ensure exchanges, no matter how jovial, relating to these are stopped immediately, with appropriate action taken.This is because employers are vicariously liable for the actions of their employees if it can be shown that the actions took place in the course of their employment.
It also is good practice to have a clear equality and diversity policy, which staff are properly trained upon.
For unwanted teasing or conduct that is not concerned with protected characteristics, the legal risk is of a different nature.
Unchecked bullying or unresolved employee grievances could lead to an employee resigning and claiming constructive dismissal.The success of a claim will depend on the seriousness of the allegations and the actions, or indeed inactions, of the employer.To bring a claim, an employee needs to have two years continuous service.In the highlighted case, as the complainant is a new employer, he will not have this service length.
However, notwithstanding the legal position, it is best to take a strong stance on unwanted conduct that could be construed as bullying.The working environment will obviously dictate this to some degree. A factory floor would, of course, be a different working environment to that of an office.Yet a prudent employer should take any allegations of bullying seriously and undertake an investigation into what has been alleged.
60 second guide to… Article 50 and overseas workers
With Article 50 now triggered, negotiations are currently taking place to determine the exact terms of the UK’s exit from the European Union.
A key discussion point will be how Brexit will impact the freedom of movement between the UK and other member states that EU citizens presently enjoy under the relevant directive.As negotiations are expected to take at least two years, it will be a while yet before we know the full state of play.
For overseas workers from countries outside of the European Economic Area (EEA) and Switzerland, little will change.
