With personal internet use at work and the popularity of social networking sites on the rise, Charles Price advises employers on what steps to take to monitor employees, without the risk of an unfair dismissal claim.

Traditionally, our judiciary has been accused of being long in the tooth and out of touch. It was well documented when a High Court judge asked a witness a few years ago: “Who is this Gazza who you refer?”

Well, imagine how some of the profession will react when they face claims referring to ‘Facebook conversation streams’ and ‘taggings’. Unluckily for those who are not savvy with the modern form of social networking, such sites are increasingly becoming the source of unfair dismissals and other claims. Employers are monitoring employees for bad behaviour and banning the sites all together at work.

It has been well documented that employers are visiting social networking sites in order to vet suitable candidates for employment. Some parties see this as an invasion of privacy. The Children’s Charities’ Coalition for Internet Safety (CHIS) is taking it so seriously that it has just launched a campaign to make it illegal for employers to make recruitment decisions based on what they found on such sites.

A more controversial use of this type of site by employers, however, is the snooping on employees to find out if they have been misbehaving in company time. Due to a plethora of high profile cases, many employees should know that their boss could well have one eye on social networking websites just to make sure that their employees are not bringing their company into disrepute.

Take, for example, Tom Beech who worked at retail chain Argos and who was sacked earlier this year when managers saw a thread of conversation that he had set up after a particularly bad day at work. The title of the thread had too many expletives to mention about the employer. The dismissal was on the grounds of gross misconduct.

Tread carefully

There is nothing to stop an employer monitoring such networking sites in order to look for misconduct. However, if an employer sees a form of conduct which deserves, in its mind, the sanction of dismissal he or she should tread carefully.

An example of this was seen where a supermarket manager was sacked by Somerfield on grounds of misconduct for posting a video clip on YouTube showing an employee hitting another on the head with a plastic bag. The tribunal awarded the employee over £2,000 compensation for unfair dismissal. It said the footage could not have indicated a lack of concern for health and safety as the supermarket claimed, and there was no evidence he had brought the firm into disrepute.

Whether an employment tribunal sees such a dismissal as fair or unfair will involve the same test seen in other conduct dismissals – whether the tribunal considers that the employer acted reasonably in treating the misconduct ‘as a sufficient reason for dismissing the employee’.

There is no onus of proof on employer or employee here and the matter has to be determined by the tribunal ‘in accordance with equity and the substantial merits of the case’. The correct test to apply is to consider whether dismissal fell within the range of reasonable responses open to an employer in all the circumstances. If the tribunal is left with a feeling that the employer is delving into areas which are nothing to do with work then the surfing employee is likely to be absolved of blame.

With the increasing number of subscribers to Facebook and similar sites, cases such as this are on the increase. Royal Mail reported that workers across its company are responsible for at least 100 groups on the social networking site. Questions are inevitably being asked regarding where the boundaries lie for employees and employers alike.

Time wasters

This form of networking site has brought to the attention of employers the familiar problem of excessive internet use. A recent poll revealed that two thirds of top London companies are now banning or restricting the use of Facebook over fears that staff are wasting time on it. A study found British users spend on average 191 minutes a month on Facebook and dozens of people have admitted to ‘Facebook addiction’, where they check the site compulsively.

It comes as no surprise that, as a result, organisations such as British Gas, Lloyds TSB, Bloomberg, the Metropolitan Police and Credit Suisse are among the increasing number of firms actively blocking their employees from accessing the site from their workstations.

For a company employing, say, more than 100 people, staff logging on for 30 minutes a day could cost thousands of pounds in time lost every year.

A bigger threat to business is the leaking of company information. A recent survey by email security firm Proofpoint reveals that 35% of large European businesses employ staff to read employee emails, and 22% sacked employees for email privacy violations.

Employees are becoming increasingly aware of their rights and the Human Rights Act may well feature in any future litigation against snooping employers. For now it seems, however, that companies are on fairly safe ground to monitor, as long as it is for bona fide business reasons and the employer informs the workforce.

It is important that companies set out clear policies and standards in relation to use of the internet in the workplace so that everybody is protected, whether it be against time-wasting or against controversial groups making known to the other 3.2 million ‘Facebookers’ out there what your company’s really like.

Employers should inform employees through an acceptable use policy, which explains what action the company may take if it feels it is necessary. If an individual is to be dismissed for using the internet too much it is unlikely that a tribunal will see the dismissal as fair if the employee has not been warned first that such behaviour constitutes misconduct.

Charles Price is a barrister at No5 Chambers.