Men behaving badly

Whether it's firefighters filming themselves spinning around in a tumble drier, supermarket employees racing each other on pallet lifters, or footage of construction workers misbehaving, YouTube has developed into a peculiar threat to employers.

Regardless of how, where, or when such videos may have been filmed, they cannot be considered good for the image of an industry. And perhaps more importantly, they can be acutely embarrassing for any company involved.

Legal position

So even if the vast majority of your employees are mature, responsible, hard-working individuals, it's worth considering where you stand legally if you come unstuck thanks to the one person in your organisation who is none of the above.

There is an opinion in construction, expressed after stories involving YouTube in CJ (7 February and 28 February), that no matter how hard a company tries, it's probably never going to be able to prevent all of its workers from doing stupid things all of the time.

But even if your firm is not responsible for the production of the videos, that doesn't necessarily mean that you, as an employer, would not be liable in the eyes of Section 2(1) of the Health and Safety at Work Act 1974 if an accident occurred. The Act states: "It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees."

Adrian Bever, head of the health and safety unit at law firm Addleshaw Goddard, said: "If employees are filmed and identified doing something dangerous, then the employer is in breach of its duty to ensure safety by failing to supervise and monitor them. So in short, yes, the employer can be liable."

Case by case basis

But it's a grey area, and ought to be treated on a case-by-case basis. Bever pointed out that an employer can mount a defence if it can show that the employee was acting completely on their own initiative and that their actions were unrelated to the work in hand. In such instances, it would be reasonable for the employer to claim that any accident could not have been foreseen.

That could change again, though, if it turned out that a foreman happened to be involved in the stunts, or if management was aware of what was going on but turned a blind eye to it, according to Bever.

Taking action

What is clear is that if you do catch your employees on site behaving in such a way then you need to deal with it swiftly.

Guy Guinan, partner in the employment department at law firm Halliwells, said: "For the culprits concerned, any breaches of health and safety in that way is something for which they can and should be disciplined, and which can potentially lead to dismissal, depending on what they are doing."

But it isn't just a question of health and safety. Guinan pointed out that employees may also be disciplined for posting pranks that bring their company into disrepute, even if what they are filmed doing poses no health and safety risk. "There are a number of different avenues and I'd expect the employer to use several different sets of provisions in terms of removing that employee from their ranks," he added.

And Guinan raised a further consideration. What to do with the person who filmed the offending video? He urged caution at this stage, pointing out that the individual may have been attempting to expose the poor behaviour of their colleagues.

To avoid being disciplined, he pointed out: "They would need to show that they had raised the matter internally first, in accordance with the Public Interest Disclosure Act, before filming what was going on."

The good news is that employers probably don't have to alter contractual provisions to defend themselves against the threat of new technology. "Employers are not expected to cover everything in a policy," said Guinan. "So long as they make provisions against the main intent that ought to be enough to allow a business to take steps to protect itself."

Really then, YouTube isn't the threat. It's only dangerous because it has the potential to expose lapses concerning either health and safety or general discipline in the workplace. Keep a close eye on those areas, and you can take comfort from the fact that if your employees do go ahead and do something stupid, the only people they'll be making fools out of are themselves.