Last month it was widely reported in the media that the accounting firm Dixon Wilson had sacked British-born secretary Catherine Sanderson – who lives and works in France – for keeping a blog (an internet diary to which the public are invited to have access). On it she had posted several disparaging remarks about her employer, as well as a number of comments about her love life. The website, La Petite Anglaise, attracted about 3,000 visitors.
After the secretary (and therefore her employer) became identified, her employer promptly ‘dooced her’ – that is blogging language for being sacked. Sanderson is taking her employer to the French employment tribunal, claiming more than £50,000 in compensation. Meanwhile, the resultant publicity has meant that some 30,000 people have logged on to her website – presumably not quite what her employer had intended.
There is no doubt blogging has now come of age as an employment law issue. Here are some of the questions HR practitioners will have to deal with.
Q Can we discipline or fire an employee for writing a blog?
A This will depend on whether an employer can establish that the employee knew (or ought to have known) the conduct complained of was prohibited. After employees began to e-mail and use the internet at work on a regular basis a few years ago, the early cases that came before the tribunals usually turned on the extent to which an employee could say they genuinely did not understand what they were doing was wrong. The tribunals quickly made clear that employers needed to have policies in place to ensure there were no misunderstandings in that respect.
Employers now need to introduce a policy on blogging. This can prohibit using the employer’s IT systems to keep a blog, even if the employee is doing so in ‘their own time’. Additionally, an employer may want to include blogging at work as a potential act of gross misconduct (entitling the employer to dismiss immediately, rather than on notice).
Just having a policy is not enough, however. An employer needs to be able to show that the policy has been effectively communicated to the workforce, and that it is acted on in practice. If an employee is to be disciplined or sacked for blogging, an employer will also need to ensure it has followed the statutory and any contractual disciplinary policy before doing so.
Q What if we don’t have a policy on blogging?
A This is likely to be the current position with most employers, and much will turn on the facts of the individual case. If the employee has said something on the blog which affects their ability to do their job, or is damaging to the employer’s reputation or is defamatory, then plainly that can be treated as an act of misconduct.
Being caught at work blogging may lead to some form of disciplinary sanction or warning, which of itself may be a prelude to subsequent dismissal if the conduct is repeated. It will be a question of degree, however, since presumably innocent ‘blogging’, provided it does not take up work time, is a relatively benign activity depending, of course, on its content.
Q Can the employee claim their blog is a private matter, and that the employer has no right to complain about it?
A Employees do have a right to a private and family life (especially if they work for public bodies, but also if they work for organisations in the private sector). However, this right is subject to the employer having legitimate interests which it may seek to protect, and these can include, for example, the need to protect its reputation.
Q Should we adapt our internet policy?
A Given the wide publicity that Sanderson and her website has now attracted, and the increased interest in blogging, employers have little choice but to protect themselves against this activity.
Fortunately, most employers these days have an e-mail and internet policy and, therefore, an appropriate adjustment to include reference to ‘blogging’ should not cause great difficulty. However, you must ensure such a change is properly communicated to your staff, and subsequently acted on.
by Richard M Fox, head of employment, Kingsley Napley
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