letter on social media policy

8/8/2019 Letter on Social Media Policy

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Dear Chair and Committee Members

Introduction and Summary

1. My previous interventions into the Council's business have been adversarial I

hope this does not colour my submission which is offered in the best interests

of both the Council and its employees. In addition to being the Labour

Candidate for Bishopsworth I practice as a Barrister specialising in

employment law. I represent both Claimants and Trades Union and

Respondent's as diverse as multinational corporations and Bristol City Council

(which I will refer to as "BCC"). Due to my candidacy, I am restricted from

giving advice to BCC in my professional capacity due to the possibility of a

perceived conflict of interest. This should not be considered legal advice and

independent legal advice should be sought before implementing the

recommendations as policy and it is offered to encourage further

investigation by BCC.

2. On reading the document relating to Web Access for Staff/Amendments to the

Code of Conduct I noticed several matters which in my opinion could give

cause for concern in employment law. This could be based on a

misunderstanding of current social media usage. The following issues arise

a. The wording of Paragraph 11.3.2 seems overly restrictive and might

encourage employees to believe they are not permitted to identify their

employer on social media sites (which does not appear to be the

intention of the drafter)

b. Disciplinary action arising out of Paragraph 11.3.2 where such usage

has been due to Trade Union Activity would be automatically unfair


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contrary to s 152 Trade Union and Labour Relations (Consolidation) Act

1992 (which I will refer to as "TULRA")

c. The policy does not seem to recognise the possibility for a public

interests disclosures under the Public Interest Disclosure Act 1998

(which I will refer to as "PIDA") and could be void by virtue of s 43J PIDA

3. For the benefit of the Committee I produce the paragraph below:

11.3.2 Social networking websites

The Council respects an employee's private life. However, it must alsoensure that confidentiality and it's reputation are protected. Employees usingsocial networking websites in their private life;lmust refrain from identifying themselves as working for the Council, or

disclose the name of Bristol City Council on it, or allow it to be identified bydetails, which has or may have the effect of bringing the Council intodisrepute.lmust not identify other Council employees or service users without their

consentlmust not make any defamatory remarks about the Council, it's service

users, employees or managers or conduct themselves in a way that isdetrimental to the Councilldisclose personal data or information about the Council,or it's service users,

employees or managers that could breach the Data Protection Act 1998.(e.gphotographs, images)

Perceived overly restrictive language of Paragraph 11.3.2

3. The language of the paragraph 11.3.2 may well encourage employees to

believe it is the Council's intention to discipline them if they state they are

employed by BCC and that they are required to get a work colleagues

permission before mentioning them in social media. This plainly can't have

been the drafter's intention. It would preclude use of social Media like


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LinkedIn which is effectively an online CV or prevent employees from

discussing a night out with colleagues.

4. The drafter's intention is clearly a restatement of the old implied term of

"trust and confidence" in the employment contract between employer and

employee. There is also a legitimate concern that Council employees might be

perceived as communicating on behalf of the Council. The current best

practice in commerce and industry is that employees who clearly identify

themselves as an employee are advised to insert a disclaimer onto their social

media site, websites or Blogs that any statement of views contained on the

site are those of the employee and are not representative of the employer's

views.

5. I see little harm in stating the term of trust and confidence in the Code of

Conduct and would suggest the following amendment:

The Council respects an employee's private life. However, it must alsoensure that confidentiality and it's reputation are protected. Employees usingsocial networking websites in their private life;lmust refrain from identifying themselves as working for the Council, or

disclose the name of Bristol City Council on it, or allow it to be identified bydetails, which has or may have the effect of bringing the Council intodisrepute.lmust not identify other Council employees or service users without their

consentlmust not make any defamatory remarks about the Council, it's service

users, employees or managers or conduct themselves in a way that isdetrimental to the Councilldisclose personal data or information about the Council,or it's service users,

employees or managers that could breach the Data Protection Act 1998.(e.gphotographs, images)


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Council employees using social media sites will maintain the relationship of

trust and confidence between themselves and the Council. They will not bring

the Council into disrepute. The following non-exhaustive list provides

examples of conduct that may bring the Council into disrepute.

a. Making defamatory remarks about the Council, it's service users,

employees or managers

b. Disclosure of personal data or information about the Council, it's

service users, employees or managers that breaches Data Protection

Act 1998

c. Allowing personal views to be represented and/or perceived as the

views or policy of the Council, its service users, employees or managers.

Trade Union activity

6. Modern Trades Union conduct a lot of business on the internet. Social media

sites like Facebook are often used to organise workers and inform them of

negotiations and progress. I am aware of at least two Trades Union in Bristol

who make active use of social media sites in this way and similar usage must

be expected to spread.

7. These activities are simply an extension in the Social Media world of activities

that traditionally took place in the workplace. The actions are perfectly legal

and are protected under s 158 TULRA which in my opinion extends to all

Trade Unionists and not just accredited representatives.

8. For the benefit of the committee I reproduce s 152 TULRA


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"152. Dismissal on grounds related to union membership or activities.

(1) For purposes of [F1Part X of the Employment Rights Act 1996]

(unfair dismissal) the dismissal of an employee shall be regarded as

unfair if the reason for it (or, if more than one, the principal reason) was

that the employee

(a) was, or proposed to become, a member of an independent trade

union, or

(b) had taken part, or proposed to take part, in the activities of an

independent trade union at an appropriate time,"

(2) In subsection (1)(b) an appropriate time" means

(a)a time outside the employees working hours, or

(b)a time within his working hours at which, in accordance with

arrangements agreed with or consent given by his employer, it is

permissible for him to take part in the activities of a trade union;

9. In my opinion any disciplinary action that results from Trade Union activity on

social media sites will be automatically unfair and would possibly lead to an

unfair dismissal application and award of damages.

10. Even if BCC would not enforce this provision against trade unionists these

employees should not be placed in fear of disciplinary action for perfectly

legal conduct. The paragraph could be remedied with the insertion of " Save

where such actions are in the course of trade union activity "

Whistleblowing

11. It is hoped that there would never be any need for a public interest

disclosure under s 43G PIDA (whistleblowing outside BCC nor to persons other


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than a Minister, Lawyer or other prescribed person). There may be

circumstances where it is necessary. I have not seen the Council's

whistleblowing policy. There are sites which could be described as social

media sites (for example Wikileaks) that may also meet the criteria for a s

43G disclosure. Any term purporting to exclude a PIDA right will be void by

virtue of s 43J which I produce below.

43JContractual duties of confidentiality

(1)Any provision in an agreement to which this section applies is void

insofar as it purports to preclude the worker from making a protected

disclosure.

(2)This section applies to any agreement between a worker and his

employer (whether a workers contract or not), including an agreement

to refrain from instituting or continuing any proceedings under this Act

or any proceedings for breach of contract

12. This might be remedied by inserting " Save when such a disclosure is made

subject to the provisions of the Public Interest Disclosure Act 1998 and/or in

accordance with the Council whistleblowing policy ."

Conclusion

13. In my opinion, the suggested amendments ought to remove any

confusion on the part of employees, provide Trade Unions and Trade Unionists

to conduct their lawful activity and protect the Council. Independent legal

advice should be obtained before implementing them.


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14. As an aside it should be noted that the date the document was

published allows very little time for interested parties to draft questions to the

committee or formulate submissions and I wonder if these documents can be

published sooner in the future?

15. I hope this is of some assistance to the Committee. If I can clarify or

expand on any matters they should feel free to email me on

[email protected] or Cllr. Beynon can provide my telephone number

DARREN LEWIS

31 st September 2010

letter on social media policy

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