Staff and their personal blogs
This guide is based on UK law. It was created in February
2007.
When an employee maintains a personal blog, the
employer is unlikely to incur liability for its content unless
there is some connection between the personal blog and the
blogger's work. The boundary is sometimes unclear and will be
determined by the particular facts in each case. There may be
occasions when the employee is using his or her personal blog in a
way which could be said to bring the company into disrepute even
though they use it outside of working hours. An employer may wish
to use disciplinary sanctions against the employee in these
circumstances. The extent to which this is possible will also turn
on the particular facts.
Waterstone's employee Joe Gordon was dismissed in
2005 because he made critical remarks about his boss and the
bookseller on his personal blog, called the 'Woolamaloo Gazette'.
He referred to Waterstone's as 'Bastardstone's' and to a character
called 'Evil Boss' whom he compared to the Pointy-Haired Boss in
Scott Adams' Dilbert cartoons. An inquiry led to a disciplinary
hearing and he was sacked for gross
misconduct. The company argued that he brought it into
disrepute. With the help of a trades union representative from the
Retail Book Association, Gordon successfully
appealed against the dismissal and was offered
reinstatement.
In France, an English secretary brought a case
under French labour law after being sacked for allegedly bringing
her employers, British accountancy firm Dixon Wilson into disrepute
by writing a "Bridget Jones in Paris" blog describing her everyday
life living and working in Paris.
Writing under the pseudonym La Petite Anglaise the
secretary kept an online diary about everyday events in her work
and personal life which built up quite a following amongst the
public. When speaking about work the secretary described a
quintessential English office atmosphere complete with a senior
partner who is "very old school" prone to donning braces and sock
suspenders. The secretary maintains that stories such as the
"unwritten rule" of never pulling a cracker at the Christmas party
before the senior partner or his wife have pulled theirs were
harmless anecdotes. Dixon Wilson did not agree and dismissed her
even though she never once identified her own name or the identity
of her employers. She did however publish photographs of herself on
the blog which the company maintain could be sufficient to identify
her employers.
Initially Dixon Wilson tried to rely on gross
misconduct as the grounds for dismissal but later dropped this
justification and alleged a "loss of confidence" and "dismissal
with real and serious cause" maintaining that the blog "brought the
firm into disrepute".
She won her unfair dismissal
claim in a case that tested the boundaries between freedom
of speech and the duty of loyalty which is included in most
employment contracts in France. A similar duty of trust and
confidence is implied into every employment contract formed in the
UK. The secretary maintained that Dixon Wilson's internal policy
regarding personal use of email and internet was not watertight and
was prepared to fight her case on principle. She used the same blog
which lost her her job to inform the public of the progress of her
case.
Increasing numbers of people have personal blogs.
Some may think that they can say what they like when they are
blogging on their own time; but that is not always the case. As a
general rule, conduct committed outside employment can
potentially justify disciplinary action depending on the
conduct, the nature of the employee's job and the potential damage
to the employer's reputation. Many factors will be relevant,
including the terms of an employee's contract and any applicable
policy. In order to rely on an applicable policy an employer must
ensure that there are appropriate procedures in place to ensure
that all staff are aware of the policy and understand it otherwise
the policy may provide little protection for the company seeking to
rely on it.
If staff wish to blog on work time, an existing
communications or internet and email
policy may apply. Check this policy for how it would deal with
blogging. For example, when is blogging allowed – is it throughout
the day or only at lunchtime and after hours? If it is ambiguous,
it should be updated.
If an employee breaches the rules
The employer will be entitled to commence
disciplinary procedures if there is a clear policy and/or guidance
in place indicating that inappropriate blogging or equivalent may
give rise to breach of contract and/or misconduct, this policy has
been brought to the attention of the employees and it reasonably
appears that the rules have been breached. The employer will then
be obliged to conduct an investigation which is fair and reasonable
in the circumstances, meet with the employee to discuss the breach,
communicate any decision reached following the hearing (i.e. the
nature of any disciplinary sanction if necessary) and offer the
employee the right to appeal the decision. The employee will be
entitled to be accompanied to both the initial and appeal hearing
by a trade union representative or a workplace colleague.
Contacts
See also: Legal info about user-generated
content
