Two recent cases concerning the use of social media by employees highlight the importance for employers of having a clear policy on the use of such public forums by their employees.

The High Court has held that a Christian employee was entitled to express his views about gay marriage on Facebook and that doing so did not constitute misconduct. This decision affirms an employee’s right to privacy, viewing Facebook as a social and personal medium, unless the context suggests otherwise. According to the court, it was clear from the employee’s Facebook page that he was not using it for work-related purposes, despite the fact that 45 of his Facebook friends were colleagues.

The Courts decision highlights the scope for comments made on social media to form part of a continuing act for discrimination purposes. The claimant in this case (who is American and has a disability) was a manager at a mobile phone store. He fell down the stairs at work and has been absent from work ever since. A number of colleagues made fun of the claimant’s accident on Facebook and, as a result of the comments, he brought claims for disability and race discrimination. In general, office banter has an immediacy which means that those participating will tend not to return to the original joke long after the event, whereas the nature of social media sites invites continual comment and dialogue.

The checklist highlights the risks that a business and its employees should be aware of when using the internet and e-mail at work, sending work-related e-mails or discussing the workplace on the internet.

 Online and e-mail risks: business briefing

This business briefing highlights the risks all employees should be aware of when using e-mail and the internet at work, sending work related e-mails or discussing the workplace on the internet.

 Reputational risks

What you write in e-mails or on the internet could seriously damage your own or another person’s reputation, you could lose your job and you and your company could be sued, fined or even imprisoned.

 Stop and think before you click

  •  Anything written in an e-mail has the potential for public exposure (for example, if the e-mail is forwarded to others).
  • Posting on the internet is essentially making a public statement (for example, when commenting on social media sites, blogs or other electronic forums).
  • Failing to take care about what you write can have serious personal, disciplinary and financial implications.
  • Even if you are e-mailing or using other forms of online communication in your own time, if you refer to people at work or work related matters, you and your company could get into trouble.

E-mails and internet postings can be used in legal proceedings

  • E-mails and internet postings can be used against you or your company in legal proceedings, disciplinary meetings or other regulatory investigations.
  • Never delete e-mails relating to a legal dispute or investigation or potential dispute or investigation.

It is very difficult to delete e-mails and online postings

  • Simply deleting e-mails or internet postings will not necessarily solve the problem. Forensic IT equipment can still find supposedly “deleted” messages.
  • What you publish online will likely be available for a long time, to be read by anyone, including the company itself, future employers and colleagues.

 Do not be hurtful or spread rumours

  •  Never send e-mails or post content online that could be thought of as obscene, racist, sexist, bullying or hurtful.
  •  Never lie, exaggerate or make a false or inaccurate statement about another company or person. You could be sued even if an e-mail was only sent to one person.
  •  Forwarding an e-mail can be just as serious as writing the original – you could be sued even if the original was sent or forwarded to only one person.

 Take care with confidential information

  •  Where possible, avoid sending confidential information (such as confidential intellectual property or trade secrets) by e-mail. Take legal advice on how the information can be best protected.
  •  Any e-mail containing confidential information should be clearly marked as “confidential”.
  •  If you receive an e-mail that contains another company’s confidential material (for example, a company’s trade secrets) and the e-mail was not part of a legitimate business transaction, you should take legal advice immediately.

 Do not make a contract by mistake

  •  A legally binding contract can be made by a simple exchange of e-mails.
  •  Make it clear if you do not intend the e-mail to be binding.

 Do not copy someone else’s work

  •  Only use or attach other people’s work to your e-mails if you have permission or you know it is not protected by copyright or other intellectual property rights (for example, trade mark rights). This includes photographs and music.
  •  Do not assume that work you find on the internet is free to use.

 Do not send or view offensive or unknown material

  •  Monitor what arrives in your inbox, especially if you do not recognise the sender or the title of the e-mail seems odd.
  •  If there is a risk that an e-mail may contain a virus, do not open it and inform the IT department immediately.
  •  You could be disciplined or even dismissed for forwarding inappropriate e-mails or accessing inappropriate websites at work. In severe cases it could also be a criminal offence.

 Avoid unproductive usage

  •  Most businesses allow light personal internet and e-mail usage as long as it does not interfere with your duties. However, excessive, unproductive usage is not permitted and may be treated as gross misconduct.
  •  E-mails can often be a waste of time. Think carefully before copying someone in on an e-mail, especially if there is a long chain of e-mails attached.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.