social media

Getting the GDPR right for HR

With the implementation of the GDPR just around the corner (May 2018), it’s essential to consider how the new regulation is going to impact on HR matters. We know how tricky this can be, particularly for small businesses with no in-house team to guide them through the steps to compliance.

The  European Commission has recently put together some guidance on the GDPR, which you can take a look at here. Alongside this, they’ve also launched a new online tool for SMEs, which you can find here. The tool aims to raise awareness of the GDPR, and gives practical advice to help guide you through to a successful conclusion of the GDPR.

Similarly, the ICO has updated its guide to the GDPR. These updates include:

  • More information on the ‘lawful basis’ for collecting personal data, such as legal obligation, vital interests and public task, and
  • A more detailed explanation on personal data breaches.

You can find the full guide here. Alongside the guide, the ICO has also published guidance on documentation, and the new requirements under Article 30 of the GDPR. You can see that here.

If you’re not already a part of our community, now is the perfect time to join us. Here at Enlighten HR we will be advising clients (not people on the general mailing list so now might be a good time to talk to us about joining our community) on the HR related steps you need to take to make sure you’re GDPR compliant. As part of this we’ll also be supplying a GDPR Policy and a range of other employee-related paperwork.

If you’re interested, you can find out more by contacting Alison here.

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Social Media Misconduct: When tweeting gets you in trouble

We’ve all seen our Facebook and Twitter friends turn to the internet to vent their issues about work and colleagues. But when does it go too far? A recent employment tribunal decision showed that a long-serving employee was fairly dismissed after finding that he had written derogatory comments about both his employer and colleagues on his Twitter profile.

Creighton v Together Housing Association Ltd

Mr Creighton had been working for the housing association for nearly thirty years when, during an investigation into alleged bullying of a colleague, his employer looked at his Twitter profile. Three years previously, Mr Creighton had made a number of derogatory comments about his colleagues and his employer. In response, Mr Creighton was dismissed for gross misconduct over his tweets, although the initial bullying allegations were dismissed.

Mr Creighton argued that he thought his tweets were private, they had been posted three years ago and he ‘deserved to be treated sympathetically’ due to his long-term loyalty to the company. However the disciplinary panel rejected his arguement and dismissed him. After a failed appeal, Mr Creighton then brought an employment tribunal claim for unfair dismissal.

The employment tribunal said that Mr Creighton’s dismissal was for a potentially fair reason related to his conduct and said that his employer was entitled to take action after discovering the tweets. Although the tweets had been posted three years ago, the ET stated that the age of them didn’t matter.

This is not the only example of social media misconduct leading to a fair dismissal. In the case of Teggart v TeleTech UK, a Northern Ireland industrial tribunal said it was fair to dismiss an employee for offensive comments made about a work colleague on Facebook.

In a nutshell

As seen in the cases above, social media misconduct can be sufficient evidence for a fair dismissal of an employee. The employment tribunal has made several decisions in recent claims that relate to an employee’s derogatory comments made online and have ruled that the employer’s dismissal decisions are reasonable and fair.

For more information, visit http://79.170.40.162/enlightenhr.com or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

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European court rules that bosses can read workers’ private messages

The recent European Court of Human Rights ruling that states that an organisation that read a worker’s personal messages sent while he was at work was within its rights.

Can an employee be dismissed for sending private messages at work?

The engineer was dismissed for sending personal emails during his working hours and claimed that his employer had violated his right to correspondence and was in breach of the Constitution and Criminal Code by accessing his private messages. His complaint was dismissed on the grounds that his employer had complied with the relevant dismissal proceedings and that the complainant had previously been informed of company regulations.

He continued to appeal on the basis that his emails were protected by Article 8. Article 8 states that there is a right to respect private and family life, the home and correspondence. However the Court of Appeal decided that the employer had been reasonable.

Why do employers need to be careful?

Since the court ruling there has been an emphasis placed on ensuring that employers do not take this as an opportunity to regularly snoop on employees. Employers need to respect that employees may reply to work emails on a personal device outside of work hours so it should be considered fair that, on occasion, they may want to engage in personal conversations during the working day on a work device.

How can you prevent this happening at work?

The ruling has been an eye opener for employers and employees. Ensure that your employees are well aware of the company regulations regarding sending personal messages on a work device and do not encourage staff ‘snooping’ as a regular protocol. Make your staff aware that any messages sent on a work device are liable to be checked at any occasion if they employer deems fit.

For professional advice on this or any other HR and Employment Law matters, please contact Alison here.

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Navigating troubled waters – how can you avoid risk from employee social media use?

You don’t need to go far to find 101 social media and HR consultants giving advice on social media use. But recently we came across five things that should be of interest to your business.  Whilst there’s no substitute for getting proper, professional HR advice on setting up a social media policy, as well as making provision within other practices, these may help you to navigate these tricky waters.

 

  • Using social media for recruitment may increase the chance of claims

 

If, as recent studies show, 64% of recruiters have rejected an applicant after viewing their social media profile, this opens the door for claims for discrimination (across a variety of forms, whether sexual orientation, religious belief etc). The Employment Practices Data Protection Code states that job candidates should be told what vetting and verification methods – including online research – have been used.  You may need to consider whether you are safely adhering to this, or not.

 

  • You may be liable for the things your employees post

 

The Equality Act 2010 makes it clear that businesses are liable for the acts of their employees if they are done “in the course of employment”. This means that your business may be liable for things they have said on social media, if they are connected to their work.  Policies and training should make it clear what standards of behaviour are expected in and out of work.

 

  • Keeping hold of LinkedIn contacts

 

This has been a long-running battle for businesses and recent cases bring welcome clarity.

 

In East England School CIC v Palmer, the fact that information about key contacts was widely available on LinkedIn and elsewhere on the internet did not affect the enforceability of the non-poaching restrictions in the employee’s contract of employment.

 

Similarly, in Hayes v Ions, the employee was encouraged to set up a LinkedIn account, by his employer (Hayes) and then migrated his list of LinkedIn contacts to himself on his departure.  The High Court ruled that Hayes had reasonable grounds for considering it had a case for breach of confidentiality in these circumstances.

 

Finally, in Whitmar Publications v Gamage, the employee was ordered by the High Court to hand over control of LinkedIn groups set up for her employer.  These make things increasingly clear in terms of businesses ensuring staff are aware that any LinkedIn connections made in the course of their business are their employer’s property.

 

  • You can protect against negative things being said about your business

 

It is often possible to dismiss employees fairly for making untruthful and derogatory remarks about your business. When assessing whether this is fair a tribunal will take into account the number of likely views of the offending content as well as any previous warnings you may have given.  You will also need to prove that you have taken reasonable steps to communicate expectations and provide training to staff.

 

  • Privacy doesn’t necessarily mean the dismissal was unfair

 

Employees may claim that their social media posting are private to them. Article 8 of the European Convention on Human Rights enshrines a right to privacy, and Article 10 a right to freedom of expression. Employment tribunals are compelled to apply unfair dismissal law consistently with these rights. However, recent cases have involved a tribunal taking a view, in connection with the above points raised, that businesses have a right to protect their reputation.

 

In the case of Preece v Wetherspoons Plc Ms Preece was dismissed for making negative comments about some of JD Wetherspoons’ customers.  The employment tribunal found that there was no right to privacy as any interference with freedom of expression was justified in order to protect Wetherspoons’ business.

 

In the recent case of Smith v Trafford Housing Trust, however, the employee’s anti-gay marriage Facebook comments were seen as quite separate from his work, even though they were in breach of a staff policy to refrain from expressing political and religious views, and had offended a work colleague.  As a result the dismissal was deemed unfair.

 

In conclusion… what can we learn?

  • There’s no substitute for a clear social media use policy, setting out what people can and can’t do and the likely outcome of certain action.
  • There’s also no substitute for clearly communicating your position concerning recruitment and social media.
  • When staff are involved in social media use as a part of their job you could consider supporting your social media policy with clear training and guidance on best practice – to empower as well as restrict them.
  • When in doubt, seek advice from an HR professional who can tailor all of this to your individual case.

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