Digital media – twenty-first century windmills?

Economists describe the internet as a disruptive innovation, in other words: an invention that alters reality forever. Even for those of us who grew up in the digital stone age of the eighties, it’s difficult today to imagine our work and personal lives without an immediate and complete access to everything – always.

In recent years there has been lively debate surrounding employees’ use of social media. I myself have delivered dozens of lectures in the area. But are the underlying issues actually anything new? For decades the Labour Court has established the boundary lines between an employee’s duty of loyalty and their ability to make open criticisms; so, I would argue, what is “new” is the unparalleled speed at which information can now be spread. Nowadays, it is almost uncontrollable and remains in principle forever. Submissions to the local newspaper have been replaced by Twitter messages that can be read by everyone – even in the future.

For many employers, the social media arena is associated with a certain horror. There are some who forbid their employees using computers to access social media during working hours. The question is how effective are such prohibitions? After all, most employees possess a smartphone which is ready to quickly communicate with the outside world. Furthermore, engaging with social media during working hours is, according to surveys, a matter of course for today’s youth. For them, it’s as natural as being able to make a private phone call at work. Communication channels change with time and this is something that employers must react to.

You made your bed, lie in it – at work and in private.

The use of social media at work can certainly be positive, both for companies and individual employees. But in my work as a lawyer, I have also seen how certain behaviours can bring anything but positive consequences; whether it’s uploading images from a staff party to Facebook, completely open for all to comment, the disclosure of business secrets or, not surprisingly, criticism directed at the boss. In my lectures, I usually divide this type of transparent communication into two categories. The first concerns what you say and do within your role as an employee; criticising the employer, harassing colleagues or general loyalty issues. The second is about how an employee, as a private person, behaves online. And I think that the major challenge lies in this latter part – where an employee’s private online activities can endanger both the employer, customers and others’ confidence in the employee and, by extension, their current employer. How do you handle a situation where a member of staff is found to have published a xenophobic blog that is read by tens of thousands?

Case law in the private sector is fairly sparse, but there are two cases to mention; one from each of the private and public sectors. First, we have the head teacher who was dismissed, inter alia, because he participated in sexualised Facebook groups and posted party photos of himself. Then we have the policeman who was sacked after writing misogynist articles on his own blog. In both cases, the employers’ decisions were reversed by Labour Courts. Based on these two judgements, we learned that employees, in the context of their private life, have great freedom to express themselves online. In the case of public sector employees, the strong freedom of expression granted to them even provides that an employer must withstand the loss of confidence, or as the Labour Court wrote, employees should be “free in their way of life.”

Can you rely on common sense?

To avoid difficult situations, I see the need for internal guidelines. This mainly applies to private sector employers, whose employees are not subject to such a strong freedom of expression. However, even within the public sector, there exists a need to clarify what is deemed inappropriate behaviour. Essentially, such guidelines could be used to practically demonstrate an employer’s values and expectations. To rely on “common sense” can be difficult because we all have different interpretations of what this might mean. Instead, a policy which sets out the framework for what is acceptable and unacceptable might state, for example, that: employees should not access Facebook pages, pictures from work parties cannot be published, controversial views shouldn’t be expressed and that any references to the employer must be approved in advance. In short, it is about creating a consensus on what “common sense” actually means. Employers should see it as a prudent investment that will prevent difficult situations arising in the future.

The Labour Court has said this for a long time, whilst adding that an employee who criticises their employer risks their employment. Yet, I believe, the more relevant issue for employers is how they can constructively act to intercept criticism before it’s aired on Twitter. And so, when it comes to employer’s avoiding criticism online, a company’s values and how they are implemented become more crucial than ever. It is time for employers to lead by example and act towards their employees in a meaningful way, now, in this time when we have immediate and total access to everything – always. Online.

Thomas Ogard – Employment lawyer