Online self-expression is a topic employers and staff should consider carefully, writes Simon Allison
Are you excited about Pokemon Go coming to the UK? Personally, I can think of nothing better than spending my lunchtime racing round Dundee with my smartphone and my team trying to capture the latest Pokemon characters.
Will I find a Charizard in the Caird Hall? Will there be a Dragonite lurking in Bank Street? Either way, I am going to try and contain my excitement about this new game and, unlike a Singapore resident, resist temptation to use social media as a vehicle for my impatience.
Sonny Truyen was allegedly sacked after a profanity-laden rant on Facebook inspired by the unavailability of this smartphone game in Singapore. He posted that Singapore was filled with “stupid people” and said the national IQ would fall if he left. Unfortunately for Mr Truyen, his posts were picked up by his employer who apologised for his comments and proceeded to terminate his employment.
This is a prime example of how employers should be careful about offensive posts which purport to have come from their employees. Employers should be proactive in understanding the various social media forums, creating policies and monitoring and educating staff about social media usage. They should also be reactive in terms of taking action against offending employees, where appropriate. If in doubt, employers should take legal advice.
Neither should employees or job applicants drive themselves into having a complete cream Jigglypuff because Pokemon Go is not yet available in the UK. Similarly don’t risk reducing your CV to Ash solely on account of this issue. If you take a quick Pikachu at this recent turn of events I shouldn’t need to Raichu a letter outlining the dangers of combining Pokemon Rage with social media and the risk of getting Blastoise’d from your employment.
In the UK, most disciplinary issues are conventional but every so often one draws attention and the resultant story is given the banner headline treatment.
Think of the recent incident concerning a female receptionist sent home from work after reporting for duty, on her first day in the job, wearing flat shoes. She refused to wear shoes with the 2 to 4 inch heels allegedly required by the employer and was asked to leave. However, the employers said they would review their personal appearance guidelines, following comments that such a practice could be discriminatory.
Uniform policies/dress codes/personal appearance guidelines throw up a number of employment law considerations. It is not uncommon for employers to impose rules on appearance, for which there can be a number of potential reasons such as maintaining a corporate image and meeting health and safety objectives.
Employers are entitled to set standards of appearance. They are also entitled to enforce these standards.
However, they must not discriminate in setting their “fashion” goal posts. In the scenario reported above, arguably, a requirement for women to wear (what might be considered) sexy heels could offend against sex discrimination. A man would not be subjected to the same requirement. In addition, an employer should think of potential health and safety angles. It might be suggested that standing up all day in high heels could have long-term health implications. Could such a policy give rise to a personal injury claim in the future?
Another modern idiom is discrimination-related issues that also arise in the context of employees who dress in a particular way for religious reasons. An employer who wishes to ban certain items of clothing will need to have legitimate business or safety requirements for doing so. In one case, a nurse was not permitted to wear a cross on top of her uniform to protect the safety of patients. This was held to be proportionate and not discriminatory.
ACAS has produced a useful guide on attire in the workplace. While the guide is helpful, it may be open to interpretation in which case an employer may decide to take legal advice.
• Simon Allison is head of employment at Blackadders.