UK: An Open Secret: Electronic Media And The Limits Of Privacy

Last Updated: 21 September 2015
Article by Daniel L. Peyton

Information technology and social media have transformed the workplace and the means by which people communicate with the rest of the world in a positive and exciting way. However, this immediate and accessible means of communication also brings with it significant risks, including in the employment context.

Employers are all too familiar with the risks arising from social media and email. These risks range from candidates sharing interview experiences on social media (whether that be sharing tests/exercises or criticisms of the process), to reports of management errors and even unlawful conduct within a business.

Most have now responded to the usual employment lawyers' mantra of "make sure you have a policy", including IT policies, disciplinary and compliance policies, and whistleblowing policies. Employees, on the other hand, often seem to consider IT policies as an inhibition on their personal freedoms, when in fact they are as exposed as their employers by the risks associated with an instantly accessible, global and basically unregulated form of communication.

Certainly, there are examples of cases where private and professional lives run perilously close to one another. In the case of Game Retail v. Laws, an employee opened a personal Twitter account in his own name. The account made no reference to his employer and the only connection with his employer was that a number of its employees were followers. He posted material on the account that was later described in Tribunal as being offensive to "dentists, caravan drivers, golfers, the Accident and Emergency Department, Newcastle supporters, the police and disabled people". His employment was terminated when his employer found out about the account. He brought a claim for unfair dismissal but was not successful.

In Gosden v. Lifeline Project Ltd., an employee sent an email from his private email account to a colleague's private email account. After this email was forwarded and his employer discovered its offensive content, the employee was dismissed. He also lost his claim for unfair dismissal.

Employees need to understand, and employers have a role in helping them to understand, that there is no longer a clear and predictable division between private life and working life in this area. This is partly because it is now widely known, or should be, and should be foreseeable that ostensibly "private" communications will routinely become publicly accessible. Any employees who go online and post or email comments or views that are or could reasonably be taken as being offensive, risk draconian sanctions by their employers. Furthermore, these draconian sanctions are now more likely than ever to be upheld as fair by the Employment Tribunal.

In a different context we are accustomed to ostensibly private conduct being treated as work-related because of the impact of such conduct on the workplace. For example, in Gimson v. Display by Design, an employee was held to have been fairly dismissed for punching a colleague on their way home after a Christmas party. It was held that this was a fair dismissal because there was a sufficient connection to work and the event would have material impact on relations within the workplace.

If I make an inappropriate comment to a friend in the pub at the weekend, no one would suggest that I should lose my job. However, there is a qualitative difference between a comment to a friend in a pub and posting on Twitter or even sending an email. This is why employees can, even acting in their private capacity, through the use of such readily and widely accessible media, cause substantial reputational damage to a business by virtue of their actions. Furthermore, there should now be an expectation that any such comments or emails are likely to come into the public domain and that people who post material that is or may be offensive do so at their own risk. Not only that, but there should also be an expectation that evidence of such material will likely remain accessible and visible for a long time. When such stories attract press attention or go "viral", the general public may not know that Joe Bloggs is an employee of New Co, but its clients, suppliers and other employees do, and that may be enough to result in dismissal.

Of course, the case law does not go this far. But employees should be aware of the practical risks they take in sharing on social media, or by email, any conduct, comments or thoughts that may cause offence and damage not only to their own reputations, but also the reputations of those associated with them, including their employer.

Therefore, the message is that policies are necessary, but they are not sufficient. Employees need training. They need to be made aware of the risks to their own reputations and careers if they do not act in accordance with the policies that they may see currently as an interference with their privacy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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