Policy clinic: Don’t fine that blogger

The phenomenon of blogging is becoming more widespread and, as with any new use of technology, it has considerable potential for misuse and abuse. Over recent years a small but increasing number of employees has been dismissed for things they have written on their blogs. The issue can be ignored, but it will not go away.

In the vast majority of cases, blogging should not present a problem for employers. Many big businesses have their own corporate blogs and actively encourage their employees to contribute. Microsoft, for example, has seen its reputation improve on the back of employees’ musings about its technologies on their blogs. However, things can rapidly become problematic if in doing their blogging employees waste time at work, make derogatory comments about their employer or its products, or disclose confidential information.

While employers can clearly never prevent employees from blogging outside work, they can establish guidelines to make employees fully aware of the potential consequences of doing any of these things and that there are limits to what staff may claim is their right to freedom of expression.

Blog policy

A sensible starting point for employers is to amend any existing IT and e-mail policy or, failing that, to put in place a specific blogging policy. Before doing so, think carefully about what you are trying to achieve.

An increasing number of organisations have their own corporate blogs, so in addition to introducing guidelines on personal blogs, think about the policing of your own internal systems.

You need to strike a balance between the positive corporate image which can be gained from staff blogs on the one hand and the maintenance of appropriate monitoring and controls, always vulnerable to emotive allegations of censorship, on the other.

By having a policy in place, employers can at least reduce the scope for misunderstanding, make it easier to take disciplinary action if an employee still acts inappropriately and protect themselves – to some extent – against claims from third parties.

Cross-check the blogging policy with others, including those for IT and e-mail, equal opportunities, disciplinary and grievance, and data protection – to ensure a consistent approach. Like other policies, a blogging policy will normally be stated to be non-contractual, as this increases the flexibility the employer has to make changes to it in line with new law or good practice.

Adverse effects

Provided that you have a clear policy in place and that it has been communicated to all staff, you should be able to take disciplinary action if employees blog inappropriately. Before taking such action, however, bear in mind the potential adverse commercial implications of doing so. Taking disciplinary action can sometimes give an employee’s blog more publicity, as in the Waterstones case. The company attracted a large amount of media attention after it dismissed one of its employees, Joe Gordon, who had worked for Waterstones for 11 years, for making inappropriate comments on his personal blog.

This case highlighted that blogging is no different from other misconduct, in that taking disciplinary action (however legitimate) can sometimes give an employee’s blog more publicity than would have been the case had the employer simply told him quietly to close the site down.

Blogs are increasingly part of everyday life. It would be easy to dismiss many of them simply as the trivial ramblings of those with an over-developed sense of their own importance to the wider public, but the fact remains that properly managed blogs can be useful industrial relations and PR tools for employers. Having a decent policy should reduce the scope for abuse (deliberate or inadvertent) and so help your organisation get the best out of the inevitable further rise of this practice.

What should a policy contain?

The following provisions should be included in any blogging policy:

  • Define ‘blogging’ so that employees are aware of what the policy covers.
  • If the employer has a corporate blog, make it clear when, how and for what purposes this can be used and that the personal views of employees expressed on it do not represent those of the employer.
  • Ensure employees are aware of the potential consequences of referring to their employer (its customers, clients, secrets) in their personal blogs.
  • Make clear the extent to which employees can use the employer’s own IT resources for this purpose. As a general rule, personal blogging on corporate systems should be prohibited, even if it takes place outside working hours.
  • Set out any restrictions on the time that can be spent blogging, eg that employees may only use a corporate blog during lunch or before or after work and not at any time which interferes with the proper performance of their duties.
  • State that offensive, defamatory, discriminatory or otherwise inappropriate comments in a blog (whether corporate or personal) will not be tolerated and that such behaviour may result in both disciplinary action and personal liability for the employee.
  • The disclosure of any confidential information or trade secrets about the employer, its staff, customers, suppliers, etc. is forbidden and that the laws governing defamation, breach of copyright, etc. apply as much to blogging as to other written communications.
  • Remind employees that blogging is not a substitute for conversation nor a private journal, that it may create disclosable documents in any litigation and that if it is on the employee’s blog they will be presumed to have written it unless they can prove otherwise.
  • Ensure that employees are aware of the extent to which the employer will be monitoring its own IT systems and their use of the internet and e-mails at work.
  • Ensure that employees are aware of the consequences of breaching the policy and that disciplinary action will be taken, potentially including dismissal.

David Whincup is partner at law firm Hammonds and head of London Human Capital




 

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