The
disciplinary action raises questions over what employers should and
are allowed to do when employees use new media technologies in a
way the employer disapproves of.
The unnamed civil servant at the heart of the controversy is
said to be a fast-track civil servant who, on her blog, said that
she was "just senior enough in my department to really know what's
going on, but not senior enough to attract suspicion from my
blogging".
She detailed how policies in her department, which has been
identified by observers as the Department for Work and Pensions
(DWP), were announced more than once to give the impression of
activity, and said that senior ministers are lazy, only taking
decisions at weekends "because they have their spouse and/or
political adviser to do it for them".
Followed closely by political observers, the blog attracted an
influential following and was the subject of an investigation to
discover its source. Last week the blog went off-line and a civil
servant was reported to have been confronted and admitted
authorship. She has been suspended, according to reports.
There is a civil service code of conduct which governs what
civil servants can and cannot say in public, and a spokesperson for
the DWP told the Daily Mail that it was investigating whether or
not any breach of that code had taken place.
Employment law specialist Catherine Barker of Pinsent Masons,
the law firm behind OUT-LAW.COM, said that some blogging could be
grounds for disciplinary action regardless of the content of any
code or agreement, but that employers will find themselves on much
stronger ground if they have and communicate a clear policy to
employees.
"In the absence of having a clear policy which covers this type
of activity an employer hoping to instigate disciplinary action
against a member of staff would have to show that the employee has
breached one of the implied terms of their employment contract,
such as the duty of fidelity, confidentiality, or perhaps trust and
confidence," said Barker.
"If a member of staff is openly critical of the employer in a
blog, it can be evidence of a breach of trust and justify
disciplinary action. Being able to point to a clear communications
policy that spells out that it is unacceptable to identify your
employer online or bring the employer into disrepute makes this
process even easier," she said.
Employers are increasingly faced with the problem of how and
whether to regulate employees' communications using ubiquitous
publishing technologies such as blogs or social networking
sites.
Last year an employee at an accountancy firm in Paris was sued
by that firm. Catherine Sanderson wrote about her employer without
naming it, but the firm thought she had identified it by publishing
a photograph of herself on her blog, La Petite Anglaise. She was
sacked but won a year's salary plus costs in compensation for her
dismissal.
Barker said that if employers are to take action they must be
clear to employees about their policies.
"Employers need to ensure that the ground rules of acceptable
behaviour online are firmly established," she said. "This is
particularly true where an employee is posting information in
cyberspace in his or her own free time, using their own computer
equipment, rather than that belonging to his or her employer."
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