Companies grapple with privacy issues on Facebook and Bebo
Published 09/09/2010 | 05:00
IT'S SOMETHING that has happened on countless occasions. When a company fires an employee for an apparent breach of the company's email policy, the presumption is that the case is watertight.
In 2003, a staff member at a financial services firm in Dublin was fired for such an offence. Case closed, end of story, right?
Wrong. The person took a claim for unfair dismissal against the company and won more than €20,000 in compensation, largely on the basis that his former employer's internet and email policy did not explicitly state that misuse of these tools was gross misconduct and could result in dismissal.
The need for a coherent policy to deal with the web and everything that goes with it is something businesses across every sector struggle to deal with.
Not having a clear policy is a mistake that companies make time and time again, according to Catherine O'Flynn, an associate who specialises in employment law at William Fry solicitors.
"Most companies now have policies relating to email and the internet but too often these are not specific enough or have not been kept up to date.
"The bottom line for employers is that if an offence isn't mentioned in the policy, then it will usually be very difficult to run a disciplinary procedure," she says.
"Paperwork is the key. For a policy to work it should be referenced widely and updated regularly. There's no point in having a policy if it's left in a drawer and nobody is aware of what's in it.
"At the same time, guidelines need to be kept up to date as internet and email usage evolves. Five years ago, very few would have taken into consideration social networks, for example.
"A good policy should give examples of what would be worthy of dismissal. Staff need to understand what exactly is and isn't acceptable use as far as the employer is concerned.
"There was one case where a person was fired for viewing and distributing pornography but had their dismissal overturned because pornography wasn't covered by the company's policy. That's how important it is."
It is hard to believe that something like that could happen but it really is a case of "if it's not in the policy, then it's not covered".
If that is the case then surely the obvious thing would be to just have a blanket ban on personal email and internet usage? That, though, can create a whole new range of problems for a company.
"It seems that the Data Protection Commission is against a blanket policy so a balance needs to be struck between protecting the business's interests and staff privacy," says Ms O'Flynn.
"It is nearly impossible for most companies to enforce a blanket ban on personal use. The difficulty comes when employers start to turn a blind eye to limited usage. Once they do that, then it becomes very hard to draw the line between 'limited' and 'excessive'.
"Companies need to ensure that their policies are being upheld and most policies should be specific to the firm's business.
"There are serious questions of privacy around email but with social networks the right to privacy has been blurred because to a certain extent people are posting often private messages on what is a public website.
"It seems that some people expect a certain level of privacy on sites like Facebook and Bebo which is not really the case."
Social networks are becoming increasingly problematic, both for employers and employees.
In April this year, a man in Cork was cleared of sexual assault after the female complainant wrote on her Facebook page that she really did not want to go to court, but felt she had to go through with it.
Meanwhile, in 2007, a woman was fired from a clothing retailer after posting an offensive message about her manager on her Bebo site. She eventually won an unfair dismissal claim.
"Employees need to take the view that they shouldn't post anything on those sites that they would not like to see in the papers the next day," says Ms O'Flynn.
"For employers, unlike work email, they can afford to be a little more vague in their policy, something like 'users should not post anything which would bring their employer into disrepute', something like that."
Blocking access to those sites in work probably wouldn't do anything to alleviate the problem. Unlike work email, those sites can be accessed at any time, from anywhere.
Besides, given the long hours many people put in now, some firms believe it can be good for staff morale if they can keep in touch with friends online. In any case, even if they ban access to these sites or personal email, employees can still access them on a smartphone.
"It really is best to allow limited use of those sites as long as productivity or performance is not impaired -- that's a key question for employers: is this affecting my employees' ability to do their job?"
Email and the internet have undoubtedly caused problems for both employer and employee in the past and will undoubtedly do so again.
There has yet to be a case brought involving videos posted on YouTube, for instance. One thing that is for sure though is that employers have to try to get everything covered by their policy.
If your internet policy is gathering dust in a filing cabinet somewhere, get it out, update it, and make sure all your staff know about it.
Otherwise there is a good chance it will eventually leave you in a world of embarrassment or financial pain.