Law & Regulation
BY
Misuse of Social Media, Emails and Technology
Louise McGonagle
Misuse of Social Media,
Emails and Technology
Louise McGonagle highlights the risks all employers should be aware
of surrounding the use of social media in the work place.
Just recently in the UK, Paris Brown, the
newly appointed first Youth Police and Crime
Commissioner resigned. She did this after an
investigation into tweets she posted when
she was between the ages of fourteen and
sixteen, which could be construed as racist
and anti-gay. In a similar case in 2012, a
student received a jail sentence for racist
comments he made about Bolton footballer,
Fabrice Muamba on Twitter. The student’s
lawyer commented 'for a moment of madness,
his career has now gone’.1
A 2009 U.S survey by Harris Interactive found
that out of 2,600 managers that were hiring,
45% said that they had used social media
tools to research potential candidates. Out
of that, 35% said that they found material
affecting their decision to hire a potential
candidate. This ranged from posting
provocative photos or information about
them taking illegal substances, to making
discriminatory comments or slandering their
previous employers or co-workers.
To alert candidates to such possible
findings, and to prevent issues coming to
light after employment, employers should
have a recruitment process in place to
include the search of social media. Any
information that is found should be treated
in a confidential and reasonable fashion,
in the same way that other information
gathered is treated.
A graduate of psychology,
business and HRM, Louise
has worked for over
sixteen years in the HR
field, both in the public and
private sectors, spanning
numerous industries. Now
a senior HR consultant
with Graphite HRM Ltd
she trains and advises
clients on best practice
HRM and Employment
Law Compliance.

Continued on Page 20
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ACCOUNTANCY PLUS. ISSUE 02. JUNE 2013
19
Law & Regulation
Misuse of Social Media, Emails and Technology
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Continued from Page 19
On one hand, social media is an invaluable
tool for business in effective marketing,
recruiting and networking. On the other
hand, it provides an uncontrolled platform
for the dissemination of personal views
and activities. Section 10 of The European
Convention on Human Rights refers to a
person’s right to freedom of speech. However
taken too far, this can and has caused a
litany of issues in an employment scenario.
Facebook, Twitter, Bebo, LinkedIn, and You
Tube are probably the most well-known
social media sites. With over 850 million
members, the average 18 to 25 year old
spends over an hour per day on Facebook
while at work and 67% of staff admitted to
checking their social networking sites during
working hours2. Despite blocking internet
usage on company PC’s, the smart phone
revolution provides ample opportunity
for employees to use social media during
working hours while the employer is
unaware. Employers must constantly adapt.
The Harlem Shake is one of the latest mass
views on You Tube, with up to 4,000 videos
uploaded on the internet every day. Recently,
fifteen miners at Western Australia’s Agnew
Gold Mine were dismissed after participating
in this latest dance craze and posting it on
You Tube3. While the miners felt they were
having a bit of fun, the company held a
different view. They determined that it was
in breach of its core values of safety. It is
likely that the miners will contest this action
as being too heavy handed. Whatever the
outcome, it is another reminder to employers
of the difficulties faced in the workplace
concerning the management of social media.
Since the social media revolution began in
the early 1990’s, employers are constantly
faced with:
• Accusations of defamation and the
bringing of a good name into disrepute
• Disciplinary action because of misconduct
through breaches of confidentiality and/
or procedure.
• Decrease in productivity with the
infiltration of social media being viewed
in the workplace.
• Administrative burden experienced by an
organisation in dealing with an issue.
If the fall out of an employee’s use of
social media is mismanaged, it potentially
places the organisation at risk. Litigation
in relation to accusations of bullying, and
potential personal injury associated with
that, as well as discrimination and/or
victimisation are rife. Plus the dangers
employers face as they navigate their
20
BY
Louise McGonagle
way through an investigation and/or
disciplinary process relating to the misuse
of social media.
issues that may arise in relation to Bullying
or Harassment. In order to adequately
discharge liability, an organisation must also:
Cyberbulling has emerged from the
social media revolution. A survey in the
UK of 1,072 workers found that one in
five employees have been bullied at work
through cyberbullying.4
• Train designated people in the
organisation on how to manage an issue
that may arise.
• Immediately address any breaches in the
policies or complaints that arise.
Cyberbulling can be defined as the use of
the Internet and related technologies to
harm other people, in a deliberate, repeated,
and hostile manner5. The use of email is
particularly notorious for instances of this.
A number of emails may show a trail of
inappropriate behaviour that could amount
to a reasonable perception of bullying such
as; being the subject of an on-going joke
via email; consistent bombardment of
instructions from a supervisor; bold and
capital font in an e-mail which could be
viewed as SHOUTING.
In the case where offensive remarks are
made by an employee, the onus is on the
employer to show that everything has been
done to prevent or restrict such behaviour,
and address it appropriately when it occurs.
The onus is not discharged if the employer is
not aware of such behaviour. At all times, the
employer is vicariously liable. In other words,
the employer must demonstrate steps
that have been taken to prevent potential
harassment or bullying, despite not being in
a position to know what is going on.
How does an employer go about doing this?
Among other key techniques, is to have
a robust policy on Social Networking and
Communications Policy (SN&CP) outlining
the parameters associated with using
social media. This could include:
• Rules around the usage of email, internet
and social media sites and the expression
of personal views in the company name.
• Clear statements of what is and isn’t
appropriate and the rules around
intellectual property.
• Identification of what could be construed
as bullying or harassment and that it is
strictly forbidden.
• Training on internet security and
virus protection. Also outlining where
responsibility lies in password protection.
• Repercussions of any breach of the
policy i.e. that disciplinary action may be
instigated up to and including dismissal.
In addition to a SN&CP, a Dignity and
Respect at Work Policy should be in place
that is accessible to everyone. This outlines
the rights and supports in place to address
Failing to have an appropriate SN&CP in
place was one of the downfalls in Kiernan
v’s A Wear. As a result, the employer failed
to show fair dismissal of an employee who
posted comments on Bebo about a heated
conversation she had with her supervisor,
which was picked up by a customer. She
was awarded €4,000. This was a similar
factor in Walker v’s Bausch & Lomb Limited.
Bausch could not prove the intranet policy
was given to an employee who had posted
comments on a company website about
redundancies which resulted in an award
of €6,500. A word of warning to employers
to include an acknowledgement of receipt
and understanding when issuing a SN&CP.
Dismissals can be viewed as fair once
procedures have been issued and are clearly
understood by their employees. In Crisp v’s
Apple Retails (UK) Limited8, the employee
made negative comments on Facebook
about Apple products. Apple successfully
defended the dismissal as the employee had
been provided with training, particularly in
relation to how to how to present himself
“in public, in online social networks and blogs”.
In conclusion employers need to be
vigilant in the prevention, monitoring
and addressing of all social media in the
workplace. Key actions in this regard are
to have:
• An up to date SN&CP
• A comprehensive Dignity and Respect a
work policy that is informed by the Health
& Safety Authority’s Code of Practice on
the Prevention and Resolution of Bullying
at Work and the Equality Authority’s Code
of Practice on Sexual Harassment and
Harassment at Work.
• A Recruitment Procedure to include the
parameters around which you use social
media is used for the purpose of recruiting.
1 Daily mail
2 Mail report and Peninsula Survey 2012
3 http://au.news.yahoo.com/thewest/a/-/
breaking/16279456/wa-miners-sacked-forharlem-shake/
4 The Dignity and Work Partnership
5 Wikipedia
6 Kiernan-v-A-Wear (UK643-2007)
7 Walker-v-Bausch & Lomb
8 Crisp v Apple Retail (UK) Ltd ET/1500258/11
ACCOUNTANCY PLUS. ISSUE 02. JUNE 2013