Social Media and Internet Usage Policies: Are Your Employees Putting You and Your Company at Risk?

The current covid-19 crisis has led to a significant increase in the number of employees working from home, using electronic devices and communicating virtually with colleagues, clients and competitors.

This increased reliance on such technologies substantially increases the risk for employers and company officers being held vicariously liable for acts committed by their employees while communicating online or via electronic devices. Furthermore, the Government has recently enacted the Harassment and Harmful Communications and Related Offences Act 2020 (“the Act”) which has a particular focus on prohibiting certain electronic communications and specifically provides that employers and company officers can be held criminally liable for acts committed by its employees.

Employers may be ordered to pay significant damages to third parties and can also be criminally prosecuted for their employees’ actions where such actions are found to be in breach of the following:

    1. Equal Status Acts 2000-2018 – prohibits discrimination on nine grounds including gender, age, race, marital status, religion and disability;
    2. Data Protection Act 2018 – governs the use of personal data;
    3. Defamation Act 2009 – prohibits the publication of defamatory statements;
    4. Intellectual Property Laws – protects Intellectual Property Rights such as copyright and trademarks;
    5. Harassment and Harmful Communications and Related Offences Act 2020 – prohibits the distribution, publication or sending of threatening or grossly offensive communications.

Just as employers can be liable for physical or verbal acts committed by its employees which are in breach of the above provisions, this liability also applies to acts committed electronically or virtually by employees and includes:

    1. Publications by an employee on the company social media accounts such as Facebook, Twitter, LinkedIn;
    2. Publication by an employee on their own personal social media accounts
    3. Emails sent by an employee from a company email address;
    4. Communications sent by an employee from work devices such as mobile phones and laptops.
    5. Messages, videos and links sent via WhatsApp or other messaging apps while in the workplace or for purposes connected to the employment.

To combat this increasing risk to employers the introduction of Social Media and Internet Usage Policies which clearly set out the company’s policies in relation to the use of social media accounts, both connected to the company and personal accounts as well as communication via electronic devices such as laptops and phones provided by the company or used in the workplace can offer significant peace of mind to employers and company officers. A Social Media and Internet Usage policy which is effectively communicated to employees can act as an invaluable defence to employers and company officers who find themselves being pursued by injured parties in a civil claim or by the state for criminal proceedings for acts committed by their employees in the workplace or using company devices or accounts. These policies will also provide increased protection for a company’s reputation, which can be negatively impacted by adverse acts committed by its employees, if it can be shown that the company expressly condemned such acts through the introduction of various policies.

Furthermore, in many cases these policies can be relied upon by employers to justify dismissal of an employee where the employee acts in contravention of these policies, which have been expressly communicated to them and form part of their contract of employment.

Every company is different and all policies can be tailored to the specific requirements and preference of each company in consultation with the employer and employees, where this is preferred. We have extensive experience advising clients from large multi-nationals to indigenous enterprises in relation to workplace policies and can offer assistance to any employer or company officer seeking for advice in relation to any of the above.

For more information on this topic please contact David Pearson, Partner and Head of Employment Law at J.W. O’Donovan LLP, by email at dpearson@jwod.ie or Michelle Cross, Trainee Solicitor by email at mcross@jwod.ie.

Fair Procedures & Employment Injunctions

The Court of Appeal in Ireland this week delivered a seminal judgment that will make the obtaining of injunctions restraining the dismissal of employees more difficult for employees.

The Court determined that if an employer has a contractual right to dismiss an employee on notice without giving any reason a Court cannot imply a term into the contract that the dismissal can only take place if fair procedures have been afforded to the employee, except where the employee is dismissed for misconduct.

The extensive written Court of Appeal decision in O’Donovan V Over-C Technology allowed an appeal against an earlier order of the High Court granting an injunction restraining the employer from dismissing an employee on probation, for performance issues where the dismissal was on notice and summary and without fair procedures having been applied.

The effect of the decision in O’Donovan V Over-C Technology is that the principles of natural justice or fair procedures apply to cases involving dismissal for misconduct but not to termination on other grounds. There is no legal basis to argue that the principles applicable under the Unfair Dismissals Acts should be imported into the common law.

It is important to note this judgment relates solely to injunctions seeking to prevent dismissals of employees.

The separate statutory rights of qualifying employees not to be unfairly dismissed under the Unfair Dismissals Acts continue. An employer remains obliged to implement the principles of fair procedures under the statutory code or face orders of reinstatement, reengagement or compensation for employees who are dismissed.

For more information on this topic please contact David Pearson, Partner and Head of Employment Law at J.W. O’Donovan LLP, by email at dpearson@jwod.ie

LANDMARK HIGH COURT DECISION IN FBD COVID-19 CLOSURES CASE

Today, the High Court has ruled that four pub owners are entitled to be compensated by their Insurer, FBD, for the disruption their businesses suffered due to the Covid-19 pandemic.

Mr. Justice Denis McDonald found that a policy sold by FDB covered losses that the pubs sustained by having to close due to the global health crisis.  The actions were taken by three Dublin bars, namely; Sinnotts, The Leopardstown Inn and Lemon & Duke, as well as Sean’s Bar in Athlone.

The Publicans claimed that they were entitled to have their losses, which were caused by Covid-19, covered under their insurance policies. However, the argument FBD put forward these bar closures were not caused as a result of the outbreak of a disease at the premises or within 25 miles of them.  FBD submitted that the closure was caused by nationwide outbreaks of the disease and such was not covered under the policy.

Although Judgment was due to be delivered in January, the decision of Mr. Justice McDonald was deferred to allow the parties make submissions to the court arising out of the recent Supreme Court of England and Wales Judgment where similar issues were raised.

Under the terms of the pub owners’ policies of insurance, each claimed the following :-

  1. Under the terms of their insurance policies taken out with FBD, they were entitled to have their consequential losses covered by what they claimed is an insurable risk.
  2. By failing to pay out on the policy, the Insurer was in breach of contract.
  3. The policies taken out with FBD contain a clause which states the pubs will be indemnified if their premises were closed by order of the government or local authorities if there are “outbreaks of contagious and infectious diseases on the premises or within 25 miles of same.”

Lawyers for FBD advised the Court that it has never provided cover for a pandemic and no one in Ireland had asked for it.

However, Mr. Justice McDonald was of the view that it was essential to keep in mind that the FBD policies were designed specifically for the pub trade and the nature of that trade is therefore a key aspect of the context against which the policy is to be construed.  Furthermore, Mr. Justice McDonald stated “In the years since section 3 of the FBD policy was devised, a number of significant outbreaks of infectious diseases have occurred.  For example, there was a Swine Flu pandemic in 2009.  We have also witnessed the emergence of SARS in 2003, albeit that it was largely confined, at that time, to the Far East”.

Mr. Justice McDonald disagreed with FDB’s interpretation of its policy. He held that cover was not lost where the closure was caused by nationwide outbreaks of disease, provided there is an outbreak within 25-mile radius and that outbreak was one of the causes of the closure. He stated such outbreaks were a cause of the closure of the pubs announced by the Government on the 15th March last year.

The Judge ruled that while the issue of quantifying the losses suffered by the publicans will be dealt with at a later date, he would not be awarding aggravated damages to the Plaintiff.

The case will be back before the Court on the 17th February and it is clear that this decision will cause FBD considerable difficulty as it would appear that they had issued a large number of similar policies. It is noted that FBD has made a substantial reserve in its account to cover this risk.

This decision has been welcomed by publicans all across the country given the disastrous impact of the pandemic on the pub trade, however, it has yet to be seen whether an appeal will be lodged by FBD Insurance.

A copy of the full Judgment can be viewed by clicking on the following link: https://www.courts.ie/acc/alfresco/8bfaa5dd-3ea3-4580-979f-0dfb2d8243be/2021_IEHC_78.pdf/pdf#view=fitH

If your business has been adversely affected by the Covid-19 Pandemic and you would like further information in relation to any of the above please contact Ciara Lehane, Associate Solicitor by email to clehane@jwod.ie or call 021-7300200.

This article will be updated further once issues on quantum have been decided.

Remote Working & Right to Disconnect: A Possible Future Entitlement?

The Government has published a new strategy to facilitate employees requesting remote working arrangements in parallel a right to disconnect. It is intended to introduce legislation in September 2021.

Under the strategy employees will be entitled to apply to their employer for remote working arrangements.  While an employee will not automatically be entitled to remote working arrangements the employer will be obliged to provide reasons as to why the request cannot be facilitated.  A dissatisfied employee will have the right to appeal any refusal for remote working arrangements to the Workplace Relations Commission.

The Government in parallel will introduce protections for employees to “disconnect” from emails and phones during switch-off time.  The right to disconnect will be underpinned by a legally enforcement Statutory Code of Conduct that employers will be required to follow.

The Government strategy seeks to facilitate increased levels of remote working while mitigating any negative impacts.

The Government is now engaging with all stakeholders prior to introducing the legislation and is separately reviewing the treatment of remote working for tax purposes.

For more on this topic, please contact David Pearson, Partner and Head of Employment Law at J.W. O’Donovan LLP by email at dpearson@jwod.ie.

15 January 2021