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You are here:>>Home>>Press>>Employment dangers of social media highlighted
Employment dangers of social media highlighted
The Irish Times, Monday, May 7, 2012
LEGAL UPDATE: THE PRINCIPAL risk created by employee use of social media is that of inappropriate use. Employers may be vicariously liable for inappropriate behaviour and suffer reputational damage as a result. Reputational risk may be exacerbated by the viral nature of social media.

Employers also have positive duties to prevent certain activities occurring, eg cyberbullying, under the Safety Health and Welfare at Work Act 2005. Employers may also be concerned about the use of social media outside the workplace, which is harder to control but potentially just as damaging. There is a blurring of the boundaries between work and personal life.

Cases suggest that the fairness of dismissal for misuse of social media depends on the circumstances. In Whitham -v- Club 24 t/a Ventura, Whitham posted derisory comments on Facebook regarding colleagues. Whitham’s dismissal was held to be unfair on the basis that the comments were relatively minor, were made outside working hours and did not name colleagues specifically.

In O’Mahoney -v- PJF Insurances Limited (UD 933/2010), OMahoney posted derogatory comments on Facebook in respect of her employer. The Irish EAT held that her dismissal had been fair. A key factor was that the employer was specifically named in the offending posts.

Other unfair dismissal cases highlight the importance of having a robust policy in respect of the use of social media. In Preece -v- Wetherspoons, Preece was held to have been fairly dismissed for posting derogatory comments regarding customers on Facebook, since the staff handbook stated expressly that acts committed outside work that bring the employer into disrepute would constitute misconduct. The company also reserved the right to take disciplinary action where a blog posting tended to lower the reputation of the company.

Social media sites are increasingly being used for pre-employment screening. Arguably, if individuals make information about themselves and their views available online, there is nothing to prevent third parties using such information. Prospective employers should take particular care, however, to ensure that data protection and anti-discrimination laws are not breached.

Every company should have an acceptable usage policy which prohibits inappropriate use and the posting of inappropriate content via company systems. To deal with specific concerns relating to employee use of social media, the following additional provisions should be included: 1. a prohibition on the posting of derogatory comments which may lower the reputations of the company, staff or customers; 2. a clear statement that any contacts or followers lists developed on social media in the course of employment belong to the company; 3. a requirement for employees to comply with terms and conditions of third-party social media sites; 4. a reminder that specific policies apply in particular areas (eg anti-bullying); 5. use of third-party social media sites is at the user’s own risk; 6. social media use outside of work must be done in a socially responsible manner and comply with the employer’s acceptable usage policy; and 7. clear information as to the potential consequences of breaching the policy.

Annette Hogan is a partner in McCann FitzGerald
For further information, contact:
Seamus Whelan
Elaine Callan
Carvill Rickard & Co. Solicitors
Watermill House, 1 Main Street, Raheny, Dublin 5, Ireland
Phone : +353 1 8312163    |    Fax: +353 1 8312452    |    Email: post@carvillrickard.ie
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