Inappropriate Use of Social Media By Employees-What Employers Should Know

social-media-policy

The massive growth in social media has created enormous problems for employers.

One of the most obvious, and potentially costly for both employer and employee, is the inappropriate use of social media by an employee.

This could cover a multitude of things:

  1. Making adverse remarks about colleagues
  2. Bullying comments/stalking
  3. Commenting negatively on your company
  4. “Sledging” the boss.

Questions which then arise are:

  • Can you discipline an employee for what they do outside the workplace on their “own” social media channel?
  • Are the comments likely to impact negatively on your company?
  • Are you likely to suffer damage as a result?
  • Have you a duty of care in respect of other employees for comments made by employees?

Ready to look at these issues and see how to address them?

Decided Cases

Let’s take a look at some decided cases first, for guidance.

Taylor v Somerfield Stores Limited (2007)

This was a UK case which featured a video posted on YouTube of an employee “striking” another with a plastic bag filled with other plastic bags.

It was only on YouTube for three days and only viewed eight times including three times by managers.

The employee was dismissed for “gross misconduct for posting inappropriate film footage onto the YouTube website which brought the company into disrepute”.

However, a Scottish employment tribunal found the dismissal unfair on the basis of the employees’ genuine apology, the absence of any evidence the employer’s reputation had been brought into disrepute and a finding the sanction was too harsh.

Emma Kiernan v A-Wear Ltd. (EAT, 2008)

The employee, Ms Kiernan, made profane comments about her supervisor on the social networking site Bebo.  A customer of A-Wear Ltd read the comments and notified the employer. The Employee was suspended and later dismissed for gross misconduct following a disciplinary hearing.

The EAT held that the dismissal was disproportionate even though the employer acted fairly in its procedures and the EAT felt the comments deserved strong censure.

Read the full decision here.

Teggart v TeleTech UK Ltd NIIT/704/11

The Northern Ireland Industrial Tribunal held that the dismissal of an employee for posting obscene comments relating to the promiscuity of a female colleague on his Facebook page was reasonable and fair.

The comments did not directly affect the employer’s reputation but the harassment of a colleague, which this was considered to be, was serious enough to justify the dismissal on the basis of gross misconduct.

Furthermore, having made his comments public, the employee had no reasonable expectation of privacy for the purposes of Article 8 of the European Convention on Human Rights (ECHR).

 

Employers should consider dealing with all these cases on their individual facts and circumstances. You may take into account, for example, whether or not it was a one-off incident; the real likelihood of the employer being brought into disrepute; and the employee’s knowledge of the rules.

In some cases, a sanction short of dismissal may be appropriate for a first offence.

Smith v Trafford Housing Trust [2012] EWHC 3221

Adrian Smith, a manager at Trafford Housing Trust, was demoted for making comments on Facebook opposing gay marriage.

On 16 November, Mr Justice Briggs in Smith v Trafford Housing Trust [2012] EWHC 3221 held that Mr Smith was demoted in breach of contract, but awarded him less than £100 in compensation.

However, this was not an unfair dismissal claim as Mr. Smith was out of time to bring such a case.

If he had brought a claim for unfair dismissal before an employment tribunal then he would have been awarded significantly greater financial compensation to reflect the actual losses he had suffered.

 Aoife O’Mahony v PJF Insurances Limited (UD 933/2010)

A director of PJF Insurances ltd. was “shocked” to discover that both herself and the company were described in disparaging terms.

She summoned O’Mahony to a disciplinary meeting, confronted her with the material from the Facebook page and requested that she open her Facebook page so that the director could view the rest of the material on that page.

On further viewing, the director found many “extremely disparaging” electronic messages, some of which contained expletives and one of which referred to her as a “bitch”.

O’Mahony was dismissed for gross misconduct.

The Employment Appeals Tribunal found that the posting of electronic messages on Ms O’Mahony’s Facebook page, which were disparaging and personally offensive towards a director of her employer (PJF Insurances), amounted to a breach of trust of such significance as to render untenable her employment and the dismissal was justified.

Trasler v B&Q Ltd. (UK EAT 2012) (Full judgment here)

Trasler was summarily dismissed after he posted on Facebook that his “place of work is beyond a f****** joke” and that he would soon be “doing some busting”, which was seen by a colleague and reported to his employer.

In the decision, the tribunal was not content that the company had shown sufficient reason for dismissal and that there was sufficient evidence to show that the claimant’s comments had undermined trust and confidence such that the claimant could no longer be employed.

However, on the issue of remedy, the tribunal found that the claimant had contributed to his dismissal not only by making the comments but also for failing to show remorse or to understand the consequence of his actions. Hence, his compensatory and basic awards were reduced by 50 per cent.

Weeks v Everything Everywhere Ltd (UK EAT 2012) (The “Dante’s Inferno” case)

The claimant was dismissed after making posts that compared his employer to Dante’s Inferno. The employer’s social media policy warned employees to avoid making posts that could damage EEL’s reputation or be viewed as bullying and harassment.

The Employment Tribunal dismissed Mr Weeks’ claim. It noted that many employees fail to appreciate the potential ramifications of their “private” online conduct, and that there is no reason why employers should treat misuse of social media differently to any other form of misconduct. The ET concluded that EEL were entitled to dismiss based on the potential reputational damage caused by Mr Weeks’ posts, and, in any case, his later posts constituted bullying towards Miss Lynn, another employee, and justified dismissal.

Preece v Witherspoons (UK ET 2104806/10 )

In this case an Employment Tribunal, in January 2011, accepted that a manager of a pub had been fairly dismissed for gross misconduct after posting negative comments about customers on her Facebook page.

The employee’s privacy arguments were not accepted as the comments were held to be in the public domain.

The right an employee has to freedom of expression under Article 10 of the European Convention on Human Rights did not prevent dismissal where exercise of the employee’s right damaged the reputation of the employer.

The fact that the employee was using Facebook during work time was taken into account by the tribunal in this case, but the same decision would probably have been arrived at even if the comments were posted outside work as the comments were clearly about work and identified customers by name.

What to Do Now?

Ensure that you, as employer, have an up to date social media policy and it is brought to the attention of all employees.

If you need to carry out a disciplinary procedure be certain to afford fair procedures and natural justice to the employee.

Impose a proportionate and fair sanction, taking into account the impact of the inappropriate behaviour on your business.

 

Suspected Gross Misconduct-2 Vital Points About Suspending the Employee

gross misconduct

Where the employer suspects an employee may be guilty of gross misconduct he should suspend the employee on full pay in order to carry out an investigation.

There are 2 important things about suspending the employee in these circumstances:

1.      The suspension should be carried out as soon as possible

The reason for this is simple: if the employer is alleging the misconduct is actually serious and “gross” he would weaken his position significantly if he leaves the employee in the workplace.

The Employment Appeals Tribunal (EAT) held in a case involving the alleged theft by a shop worker of money from the shop till that the failure by the employer to suspend the employee immediately, and let him continue to work on the Saturday prior to the disciplinary meeting on Monday:

“it was noted by the Tribunal that while the respondent stated that they considered this, a very serious matter, the claimant was allowed to work for them on the Saturday prior to the meeting on the Monday.”

This case- Duffy -v- Hugh McAvoy T/A ‘Talk To Me’ (UD 1048/2009)-saw the employee winning €17,000 for unfair dismissal.

The employee should be told quite clearly that the suspension is not an adverse finding against him and that this is a precautionary measure, and the suspension will only last until he investigation has been completed and the employer has made a decision.

2.      The employee should be suspended with pay

If the suspension is not an adverse finding against the employee, and it is merely “precautionary” and to allow an investigation be carried out, then it follows that as the employee is innocent he/she is entitled to be paid, in accordance with his contract of employment.

This can be hard for employers to swallow, particularly where they feel that the evidence is overwhelming. But carrying out an investigation with a pre-ordained outcome in mind is a dangerous, and easy, trap for an employer to fall into.

Suspending without pay

Disciplinary procedures in the workplace are intended to be corrective rather than punitive-suspending an employee without pay is clearly a disciplinary, punitive measure.

It would also make it difficult for the employer to take any further step such as issuing a warning as the employer would run the risk of imposing an excessive and disproportionate penalty. Not being able to issue a warning would then mean you were no further on through the disciplinary procedure with an employee who is suspected of gross misconduct.

For these reasons, suspending an employee without pay is not recommended to employers.

You may also be interested in Fair Procedures in Dismissing an Employee.

Fair Procedures in Dismissing an Employee -the 6 Steps You Need to Know

fair-dismissal-procedures

The vast majority of unfair dismissal cases-as much as 80%- are lost by employers because they have failed to follow fair procedures, not because they didn’t have a good reason for dismissing the employee.

All employees, no matter how bad their conduct or how incompetent, are entitled to fair procedures and natural justice-basic fair play, in other words-if they are at risk of losing their job.

Before looking at the procedural steps you need to take to ensure fair procedures you might want to read some more about what are considered, in law, to be fair grounds for dismissal:

  1. Competence
  2. Conduct
  3. Redundancy

If you have taken an employee through a fair disciplinary procedure and he has received a final written warning, or where an employee has committed an act of gross misconduct, and you are now considering dismissal you must follow fair procedures.

This involves following the general principles set out in statutory instrument 146/2000, Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

These general principles can be given practical effect, when considering a dismissal, by taking the following 6 steps.

  1. The employer should write to the employee inviting her to a formal disciplinary meeting.

This letter should set out a summary of why the meeting is being requested and that the outcome of the disciplinary meeting may be dismissal.

  1. The employee should be told that she has the right to representation at this meeting. Generally a work colleague or trade union representative would be permitted; there is no general right to legal representation at such meetings, although there have been conflicting decisions on this issue through the years; therefore each case would be judged on its merits taking into account the gravity of the circumstances, etc.
  2. The employee should be given the opportunity to respond fully to all allegations/complaints and have his responses fully considered before a decision to dismiss.
  3. The employee should be given a bias free hearing with no pre-determining of the outcome.
  4. Any penalty imposed must be a proportionate response to the alleged wrongdoing or issue.
  5. The employee should be given the right to appeal a decision to terminate his employment.

If you are an employer it is easy to make a mess of a dismissal and leave yourself open to a successful claim for unfair dismissal. Following the 6 steps above and following the general principles set out in SI 146/2000 will ensure that you will avoid a claim.

If you are an employee and you have been dismissed and have not been afforded fair procedures and natural/constitutional justice-basic fair play-you may have a winnable case.

Registration of Employers in Ireland-What You Need to Know

employers-registrationg-ireland

Are you starting up a small business?

Or perhaps you already have a business and intend taking on your first employee?

Maybe you are a non Irish company intending to employ someone in Ireland for the 1st time?

By the end of this piece you will be absolutely clear as to your responsibilities for registration as an employer and what forms to use.

When do you need to register as an employer in Ireland?

If you pay wages in excess of €8 per week for a full time employee or €2 per week for a part timer, you must register as an employer for PAYE purposes. You must also notify the Revenue Commissioners within 9 days of your name and address.

Where your business is in the form of a company and there are no employees, you must still register as an employer for the payment of directors’ income. This applies regardless of where the directors live or carry out their duties.

Au pairs/nannies

If you employ an au pair or nanny, you must also register unless

  1. You only have one and
  2. They are paid less than €40 per week.

How to register as an employer

Fill out the appropriate form and send it in to Revenue. The forms are:

  1. Form TR1 for an individual/sole trader/partnership
  2. Form TR2 for a company registration
  3. Form PREM Reg if you are already registered for income tax or corporation tax
  4. Form TR2 (FT) for foreign companies registering for tax in Ireland

These forms can be downloaded from the Revenue website here.

If you have not registered as an employer, and you should have, Revenue can register you compulsorily and let you know.

If you cease to have employees you must notify Revenue within 14 days and complete an end of year return.

Change of ownership of business

If the business changes ownership the new employer should let Revenue know; a new employer registration number may be needed.

Same employer, different employer registration numbers

It can happen that the same employer can require different employment registration numbers. For example:

  1. An employer with more than one branch can find it more convenient to operate a registration number for each branch
  2. An employer may have different groups of employees, for example, warehouse and retail or office and factory.
  3. A company may wish to operate a different registration number to manage directors’ paye and prsi
  4. If the employer has an employee in receipt of a pension, he will need a separate paye/prsi registration number to keep a separate record of pay and pension.

How to Manage Sickness Related Absence in Your Workplace, and Reduce Costly and Time Sucking Claims

sickness-policy

Are you an employer?

Have you a member of staff absent from work due to illness?

Do you worry about how to properly manage employees’ absence?

Are you concerned that you’re not sure how to manage sickness related absence?

Many of my clients were in the same boat.

But they’re not worried anymore.

Do you want to know what they’ve done to get some peace of mind in this area?

And to do the same?

Draw up a sick leave absence management policy and procedure

A sick leave absence management policy and procedure is a bit of a mouthful, isn’t it?

Basically, you want to have a policy in place which sets out clearly what procedure is to be adopted when an employee is absent through illness.

This allows you and employees know what exactly is going to happen, and the procedure to be followed.

It’s fair because it will apply to all employees.

And it provides much appreciated clarity for everyone.

This policy should make clear:

  1. whether there is a sick pay scheme
  2. what the notification and certification requirements are when an employee is out sick
  3. that the employee can be required to attend a doctor nominated by the employer for medical assessment.

Medical certs-when, and how frequently, are they required?

You can decide how soon you require a medical certificate from an employee.

What follows is not set in stone, and you can adapt it to suit your circumstances. But, if you do follow these steps, or similar ones, you won’t go too far wrong.

So, on the 1st day of illness, the employee should be required to notify his line manager as soon as possible before scheduled commencement of duty.

He should also be expected to report the general nature of  the illness and expected return to work date.

On the 3rd working day, he must forward a medical cert. to you.

You can choose whether it is the 3rd working day or 4th working day when the cert is required-it’s your decision-but make it clear in your policy document, and ensure that all employees have received a copy of your sick leave absence management policy.

The duration of the medical certs. should also be specified, with weekly certs being submitted initially.

Requiring weekly medical certs for short term absence and accepting monthly certs for long term absences is widespread, and sensible, practice.

It is helpful, also, to define in your policy what is short term absence, what’s long term, and what is unauthorised absence.

Generally, short term absence would be 4 weeks or less, while long term absence would be an absence of more than 4 weeks.

Unauthorised absence is an absence which is not supported by a doctor’s note/cert, or not authorised by management, or not communicated using the correct procedure.

Unauthorised absences would be addressed through your workplace disciplinary procedure.

You do have one, don’t you?

Regular contact should be maintained with the employee to ascertain how he is, and the likely return to work  date.

This is also useful to maintain the employee’s’ connection to the workplace, but should be on a needs basis-for example to ensure the medical certs are being submitted- and not too intrusive or pushy.

When the absence is for 3 or 4 months, it may be time to take a closer look at the absence, and the likelihood of a return to work at all.

An appointment with the company doctor or occupational physician may be arranged at this stage, at the expense of the employer.

It may be time to invite the employee in for a chat, and a discussion including letting the employee know that his employment is under review due to the absence and the question of capacity to do the job will have to be addressed.

She should be able to give an assessment of the likelihood of a return to work, when, and whether there is anything you, as an employer, should be doing to facilitate a return to work.

The doctor or occupational physician may suggest a phased or temporary return to work. This can be monitored and re-assessed after 4-6 weeks.

Before any decision is made, though, about termination of the contract on the grounds of capability, the employee should be invited to make a submission to influence the decision, and fair procedures must be followed.

The medical report should support a decision to terminate by indicating that there is no reasonable prospect of a return to work within a reasonable timeframe.

Unfair Dismissals Act, 1977, section 6(4):

 

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

 

 

Do remember, though, that the decision to terminate the employment is yours to make, and you cannot hide behind the medical assessment and blame the doctor or try to pin the responsibility on him.

Hopefully, there will be no need to terminate and the employee can return to work.

Return to work follow up

When the employee returns to work, you should:

  1. acknowledge the return to work
  2. request staff to submit a “fit to resume” doctor’s note, by the resumption date, following long term sickness absence. Unless a “fit to resume” note is furnished, employee to be given up to a week to produce one and/or not allowed to return to work without one
  3. try to facilitate a partial return to work where the employee requests it.

In any event, you should interview all employees, regardless of how long they have been out or their illness, prior to their return to work.

Role of occupational health provider/company doctor

Your sickness absence management policy needs to make clear that an employee can be requested to attend your doctor or medical advisor for medical examination and that you, as employer, are entitled to receive details of such medical assessments.

Your occupational health provider/doctor should be able to

  • carry out pre-employment medical assessments;
  • provide advice on health related matters which affect employees’ work;
  • advise about employees fitness to undertake his full range of duties and to make recommendations on measures to assist his return to work;
  • advise on employee’s fitness to undertake modified or alternative duties;
  • advise you about areas of support for health related problems which may be affecting employment.

Quit worrying about sickness related absence

Stop worrying unduly about employees being out sick.

Get a policy drawn up to manage absences, enforce it consistently and fairly, and make sure all employees have been given a copy.

You will reduce your stress, increase your peace of mind, and significantly diminish employment related claims-for stress and unfair dismissal- against you.