Employees and employers need to be wary of
blogging
Earlier this year, bookseller Waterstone's was reported to have
become the first employer in the UK to sack a member of staff
because of comments he made about the company on his online diary,
or blog. Joe Gordon occasionally mentioned his workplace of 11
years in his musings and even more occasionally would moan in his
journal after a bad day at work.
When Waterstone's discovered his comments it suspended him
immediately and, following a disciplinary hearing, dismissed him
for gross misconduct saying he had brought the company into
disrepute. Although Gordon is appealing against the decision to
dismiss him, the case raises the question of the extent to which
employers can discipline employees for deeds done in
cyberspace.
All companies whose employees use computers and the internet
need to have a communications policy that lets staff know exactly
what they can and cannot do with computers, and how they can make
use of their access to the internet both during and after working
hours. It should be clear whether any personal use is allowed,
where it is allowed and what limitations are placed on it.
The employer must tell its staff if it intends to monitor their
use of the company's systems, explaining how and why this is being
done. Employers need to tell their employees very clearly that
misuse of their equipment can lead to disciplinary action.
Clear guidance needed
Employees need to
appreciate that their computer footprints are easily tracked and
they should not put anything into cyberspace that they would not be
happy for their employer to see.
The Waterstone's case is also a helpful reminder to employers
that if they want to discipline employees for activities outside
their working hours, they need to have given clear guidance to
their staff about the type of activity, which - even if carried on
outside work, in the employees' own time, on their own equipment -
they would view as unacceptable.
In the absence of a clear policy covering unacceptable use, an
employer hoping to take action against a member of staff for
blogging would have to show that the employee has breached one of
the implied terms of their employment contract, such as the duty of
fidelity, confidentiality, or perhaps trust and confidence.
An employer hoping to take disciplinary action against an
employee on such grounds would find its position strengthened if it
could point to a clear communications policy and training programme
already in place. Staff could then not feign surprise if a
disciplinary case were brought against them.
Heed statutory procedures
Any employer
minded to take such action against a member of staff should also
remember that it needs to be careful the disciplinary action taken
complies not only with its own internal policies, but also with the
new statutory dispute resolution procedures.
If an employee is sacked and subsequently wins a case of unfair
dismissal, a failure to follow the statutory procedures could
result in an employment tribunal increasing any compensation.
If the employer does decide that disciplinary action is
necessary for a cyberspace offence, they must ensure that the
punishment fits the crime. This is especially important if the
company is considering sacking the employee.
The employer should consider carefully issues such as whether
the employee knew that they were doing something wrong, their
previous disciplinary record and length of service.
Naturally, any employer considering taking disciplinary action
against someone for blogg- ing would also need to take account of
the broader commercial implications of any decisions it makes, such
as any potential damage to staff morale and its public
reputation.
It is vital to inform employees about the damage careless use of
the computer systems can cause, not only to avoid embarrassment for
employees but also to avoid putting employers at risk of claims
from third parties.
A clear communications policy and training are the twin pillars
on which employers can build a sound understanding of the dangers
of using the internet, as well as ensuring they can defend any
disciplinary claims against employees who blog too far.
Emma Grossmith and Jane Moorman are lawyers in the
employment group at Pinsent Masons
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