Socialising can be a risky business


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This article is taken from the latest edition of Fladgate’s Fashion Update. Please email the marketing team on marketing@fladgate.com to be added to the mailing list for future updates.

Fashion has been quicker to embrace social media than many other industries, as the sector has recognised the opportunities that exist to reach and influence an ever-growing market. Doubtless, many remote viewers watched shows from the recent London Fashion Week via live streams, whilst the newest and best looks were immediately celebrated by the bloggers and celebrities who uploaded Vines, tweets and posted pictures on Instagram and Pinterest.

However, employers in the fashion industry face the same risks as employers in other sectors as regards the potential misuse of social media by their staff. The kind of issues that often arise in the workplace include employees underperforming because they spend too much of their working day on social media; the posting of derogatory comments about the employer, fellow colleagues or even customers; and the unauthorised disclosure of confidential information or intellectual property belonging to the employer or one of its business contacts.

An issue that often arises in relation to employees’ misuse of social media is whether activity that takes place outside working hours, and/or otherwise than in the performance of the employee’s duties, is capable of amounting to misconduct that the employer can take action against. Until recently, English cases involving this issue had only ever been determined by Employment Tribunals – courts of “first instance”. However, in December 2014, an appellate court (the Employment Appeal Tribunal) issued its ruling in Game Rental Limited v Laws and, in so doing, confirmed that “out of hours” social media activity, even if directed primarily at non work colleagues, may still be the subject of legitimate disciplinary action, and even dismissal. Whether or not such action is justified in any given case will depend on a variety of factors including the seriousness of the allegation, prior similar misconduct, complaints received by the employer, actual or potential damage to the employer’s reputation and how quickly offending posts are removed by the employee.

As ever, any disciplinary action that an employer takes will have a much better chance of withstanding a challenge if the employer’s position regarding the use of social media sites (and the consequences of any misuse) is clearly set out. Employers would therefore be wise to adopt a social media policy that is clearly communicated to all staff, and which states that activity outside of working hours is capable of being the subject of disciplinary action.

In the early days of social media, many employers who were unable to see that it could have any positive business impact just found it easier to prohibit employees from accessing it during working hours and on work equipment. Over the years, such prohibition has become pointless given the proliferation of the personal smartphones, tablets (and even watches and glasses!) via which we all access the internet, and the growing role that social media plays in our lives.

For further information, please contact Taj Rehal (trehal@fladgate.com) or Michael McCartney (mmccartney@fladgate.com).

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