Social Media Portal interview on the Paris Brown social media employment issue

Profiled interview with James Carmody from Reculver Solicitors on the Paris Brown social media fallout and the impact it can have upon recruitment now and in the future

Social Media Portal (SMP): What is your name and what do you do there for Reculver Solicitors?

James Carmody (JC): I?m James Carmody, employment solicitor at Reculver Solicitors


SMP: Briefly, tell us about Reculver Solicitors (for those that don?t know), what is it and what does firm do?

JC: Reculver Solicitors is a niche employment law firm founded in 2004.

SMP: Recently, a 17 year old girl called Paris Brown became Britain?s first youth police and crime commissioner (PCC).  She made a number of inappropriate comments on Twitter a few years ago (Kent youth PCC Paris Brown apologises over 'inappropriate' tweets).  Could her employer have had grounds to dismiss her for this?

JC: It is unclear whether Paris Brown was an ?office holder? or an employee.  However, as an employee, bringing the employer into disrepute would normally be considered grounds for dismissal for gross misconduct, especially if advocating illegality (drug taking etc) in this sort of a role.

SMP: Given Paris Brown has quit the job before even starting, is there any advice you can offer that other individuals can benefit from?

JC: I think the main advice for someone such as Paris Brown, who has quit before joining as Youth Police and Crime Commissioner, is to think long and hard about what she has said on social media or any other medium, and whether it will come back to haunt her if it comes into the public sphere.  It is also better to provide full disclosure to the new employer about anything that might embarrass them.  It is much better to manage the story by saying (for example) ?I once believed that drug use was acceptable, but now I believe...?

SMP: If something like this happened again, whether in the public limelight or not, how do you recommend it is handled?

JC: I would recommend that the employer first of all has a policy on the use of social media, clearly setting out what can and cannot be said. Breach of that policy should be considered ?gross misconduct? under the disciplinary policy.  If there is repetition of the incident, whether or not it is in the public eye, the employer should then follow its disciplinary procedure and if appropriate impose a sanction of up to dismissal for gross misconduct.

SMP: Why is social media a more challenging situation for employers and employees?

JC: Because it can so quickly be extremely damaging to the employer if messages on social media are put out which damage the reputation and standing of the employer.

SMP: Can employers use an individual?s social media profile during the recruitment process and are there any concerns around doing this?

JC: Some employers will carry out ?due diligence? on candidates for jobs, including checking Facebook, Twitter and other social media accounts.  Under the Human Rights Act, employees have the right to a private life, however in a high profile job it would arguably be reasonable and proportionate to do so.

SMP: What is the situation when an individual is in employment and they use social media in what may be deemed an inappropriate fashion (what could be the concerns and/or dangers here)?

JC: As above, the employee could inadvertently seriously damage the reputation and standing of the employer by putting out messages which are inconsistent with their position.

SMP: What about when the individual is in employment and they (as in Paris? case) used social media in an inappropriate manner prior to starting their job (what could be the concerns and/or dangers here)?

JC: The short answer is ?it depends.?  It would be sensible for the employer to require the employee to provide full and open disclosure of any previous statements that might be embarrassing to the new employer, before making an offer of employment.  Dismissal however could still follow for tweets made before the employment began.

SMP: What are employers allowed to monitor at work in terms of social media that their employees my use?

JC: If an employer is going to monitor social media of employees, that should be stated in its policy and publicly issued to all affected staff.  Employers should not covertly monitor tweets etc by befriending staff under assumed identities.  Arguably if employees make their tweets etc public, the employee cannot argue that they are private.

SMP: How can employees ensure that they are also protected in how they are using social media at work?

JC: By controlling closely who they allow to view their Facebook page etc.

SMP: What are the current laws that both employers and employees should be aware of and how should both parties keep abreast of these when using social media in the workplace?

JC: Employers should ensure that they have a relevant policy covering this issue.  It can be hard to keep up with case law, but the more comprehensive a policy is, the easier it will be for the employer to take action in the event of a breach.  Employees should use their common sense and appreciate that if they put something out there in the public sphere, it is not private and their employer might see it.

SMP: What do you see as biggest challenges and opportunities for employers and recruiters with the continual rise of social media from an employment law perspective?

JC: Large employers will find it difficult to monitor everything that their employees may say about them.  The clearer the understanding between employer and employee, the less likely it will be that problems will arise.

SMP: What are your top five predictions for social media and the way it is used for recruitment for the next 12 to 18-months?

JC: I cannot give you five predictions, other than to predict that monitoring social media by employers and recruiters is likely to become more and not less common, especially in high profile jobs.

SMP: What are your top social media tips for employers?

JC: As above, get a full policy in place to set out what social media usage is and is not acceptable.

SMP: What are your top five social media tips for employees (please use one to two sentences for each tip, or write more if you wish)?

JC: Don?t say anything on social media that you would be embarrassed about if it comes to your employers attention.

SMP: Can you point to any case law or examples where what we have discussed has happened, so employees and employers can see what has transpired?

JC comments: See the following:
Supporting the employer:  In Pay -v- The United Kingdom (EHCR) Laurence Pay was a probation officer involved in the treatment of sex offenders but on the side had a business selling bondage, domination and sadomasochism paraphernalia.  His website had pictures of him and others, semi-naked, performing S&M.  He was dismissed because this material was in the public domain and was incompatible with his position as a probation officer working with sex offenders. Public knowledge of his extra curricular activities affected the service.  He was dismissed.

At the ECHR Mr Pay relied on Articles 8 and 10, saying that in ?democratic society? there should be pluralism, tolerance and broadmindedness to such activities.  The ECHR did not agree.

Supporting the employer:  In January 2011 in Preece -v- J D Wetherspoons plc the Liverpool Tribunal made it harder for employees to hide behind the personal nature of Facebook or its privacy settings.

Miss Preece was a shift manager at a Wetherspoons pub and had an excellent work record.  During a work shift, she was subjected to what the tribunal described as ?a shocking torrent of verbal abuse and physical threats? by a group of people including ?Brian and Sandra?, who were asked to leave.  That evening, while still on duty, she began a Facebook discussion by making an entry that consisted of a series of expletives with several colleagues which unsurprisingly was not too complimentary about Brian and Sandra.

Wetherspoons? email and internet policy reserved the right to take disciplinary action against employees who wrote or contributed to a blog (expressly including Facebook) where the content lowered the reputation of the company, its staff or customers.

Miss Preece argued that her privacy settings meant that her Facebook comments would only have been seen by 40-50 close friends, rather than all her 646 Facebook friends.  She was dismissed for gross misconduct and claimed unfair dismissal.

The Tribunal considered that the decision to dismiss fell within the range of reasonable responses.  Her communications were in the public domain regardless of her belief about their privacy.  The company?s actions were justified in view of the risk of damage to its reputation.

Worth noting:
?    Wetherspoons had an express policy covering the exact situation (disparaging customers on Facebook) which she was aware of;
?    Wetherspoons had a hotline in place for employees who received abuse from customers; and
?    The entries were written in a light-hearted manner over a period of time and not in the heat of the moment.

Supporting the employer:  In Crisp -v- Apple Retail (UK) Limited 2011 in the Bury St Edmonds Tribunal Apple objected to a number of posts by Samuel Crisp on his Facebook page, including ?F*** you very much work? another complained about performance of his ?jesusPhone?.  A third, referring to an Apple app, complained ?MobileMe f***ed up my timezone for the third in a week and woke me up at 3am? JOY!!?.

The tribunal went on to say ?the Facebook posts were not truly private and could in fact have been forwarded on very easily.  Although he did not say on Facebook that he worked at Apple, his friends would have known this?.

Under Articles 8 and 10 he ?had no reasonable expectation of privacy? in his Facebook postings and that the curtailment Apple imposed on his freedom of expression was ?proportionate in the circumstances.?

Against the employer:  In Stephens v Halfords plc, Mr Stephens was a deputy store manager at Halfords.  He had six years? service and a clean disciplinary record.  In early 2010, while he was absent due to stress, the company began consultation over a workplace reorganisation.   While he was off sick, Mr Stephens attended consultation meetings on the company?s proposed changes, and was informed that the information given to him was confidential, he understood till consultation had been completed.

Following his consultation meeting, once the group consultation had been completed, he put up a Facebook page entitled ?Halfords workers against working 3 out of 4 weekends.?

Later, realising the company?s policy on social networking he took down the Facebook page, but the company found out about it and began disciplinary proceedings.  At the disciplinary hearing, he apologised, said he was under stress, and would not do it again.  He was dismissed summarily.

The tribunal found that no reasonable employer could have concluded that summary dismissal was the appropriate sanction: he had a clean record; apologised for his actions; and removed the offending page as soon as he realised it was a ground for disciplinary action.  He was unfairly dismissed.

Against the employer:  In Whitham v Club 24 Limited t/a Ventura issued in 2011, Mrs Whitham was a team leader with an exemplary record.  After a difficult day at work, she posted on Facebook ?I think I work in a nursery and I do not mean working with plants.?  

When the company found out, Mrs Whitham wrote a grovelling letter of apology but she was dismissed.  The company said it was fearful that the comment could damage its client relationships but did not find out whether this was actually the case.

The company pointed out its handbook which stated that employees should remember their obligation of confidentiality ?and that posting information about your job on the internet (for example, on social networking sites such as Facebook and MySpace) may lead to disciplinary proceedings and/or dismissal.?  The tribunal did not consider her comment to be ?confidential information.?  The dismissal was outside the band of reasonable responses and was unfair. 

SMP: Best way to contact you and Reculver Solicitors? 

JC: By web www.reculversolicitors.co.uk or email info @ reculversolicitors.co.uk


Read the Elemental news blog post about Kent Police may review job applicants social media accounts

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