Unsociable social media?

A guest blog from Rob Grinter at Mark David HR Ltd

Could you lose your job because of a Facebook posting or text message?

It is happening more and more as employees think they can post or text what they like with impunity. Unfortunately for them employment tribunals often take a different view.

I have highlighted a few cases here which should send a strong message to employees that they are responsible for what they write and that employers can dismiss them in certain circumstances.

Facebook, twitter and other social media platforms allow us to promote our business or post a range of information to our friends. Text messaging has also become the norm for most people as a cheap way to communicate all sorts of things to our selected recipients.

But what happens when the information we send is not very complimentary about our employer or the colleagues we work with? Does an employer have any grounds to discipline us if the views we express in a private text or a Facebook post are brought to their attention? Does it matter if the content was sent after working hours or not directly to the person we are criticising or complaining about?

Some social media coaches are of the opinion that what we send in private, or out of working hours, is nothing to do with our employer. Others qualify this by adding that as long as the employer’s business is not criticised directly then everything is fine. Their argument is that we all have a right to privacy and freedom of speech.

I would question this logic by simply saying that if you have something negative to say about your employer or your work colleagues that you wouldn’t say to their face during working hours what gives you the right to say it behind their backs or outside working hours? If your comments are derogatory or offensive they might bring the company into disrepute, may constitute harassment or may make your relationship with your employer or work colleagues uncomfortable if you were to remain in employment. (See Gosden V Lifeline Project Ltd below).

If someone brings your comments to the attention of your employer, or the employee you were referring to, then you may be asked to explain your behaviour and to face the consequences if you cannot provide a satisfactory explanation.

Some Employment Tribunals have taken the view that our basic right to privacy and freedom of expression does not override the rights of employers or work colleagues to freedom from harassment, unfair criticism, damage to reputation or abusive comments.

Some Tribunals have concluded that employers do have the power to discipline or dismiss an employee who posts abusive or deliberately malicious comments, as the following case demonstrates:

In Teggart V Tele Tech UK Ltd a tribunal upheld the dismissal of an employee who posted offensive comments about a work colleague on Facebook.

The Tribunal rejected Teggart’s argument that the Human Rights Act 1998 protected him and therefore he should not have been dismissed for making "private" comments to his friends on Facebook.

The Tribunal looked at Teggart’s arguments under each article of the Human Rights Act and decided as follows:

“Article 8

(a) When the claimant put his comments on his Facebook pages, to which

members of the public could have access, he abandoned any right to

consider his comments as being private and therefore he cannot seek

to rely on Article 8 to protect his right to make those comments.

Article 9

(b) The tribunal is satisfied that the “belief” referred to in Article 9 does not

extend to a comment about the promiscuity of another person. In the

tribunals view, “ belief, in keeping with the remainder of Article 9, is

intended to refer to a philosophy, set of values, principles, or mores to

which an individual gives his intellectual assent or which guides his

conduct or behaviour”. “The limits to this concept lie in a requirement

of a serious ideology, having some cogency and cohesion, …”

(Employment Law and Human Rights, Second Edition, by Robin

Allen QC, Rachel Crasnow and Anna Beale).

Article 10

it the responsibility to exercise that right in a way that is necessary for

the protection of the reputation and rights of others. The right of

freedom of expression does not entitle the claimant to make

comments which damage the reputation or infringe the rights of A.

The claimant does not assert that A was promiscuous but states that

his comments were a joke or done for fun. A‟s reputation has been

harmed on the basis of a joke or fun. Furthermore she has the right

not to suffer harassment.

Accordingly, the claimant’s claim for unfair dismissal is dismissed.

The following Tribunal cases also endorse an employer’s right to dismiss employees for inappropriate postings:

Gosden V Lifeline Project Ltd ET/2802731/2009. In this case an Employment Tribunal held that an employee who sent a racist email from his home computer to the home computer of a colleague was fairly dismissed when the email was forwarded to work based computers of colleagues.

Crisp V Apple Retail (UK) Ltd. ET/1500258/2011. In this case the Employment Tribunal held that it was fair for an employer to dismiss an employee for derogatory comments about the employer posted on Facebook even though the posts had been restricted to the employees “friends” only.

Preece V J D Wetherspoons plc ET /2104806/2010. In this Case Preece had posted comments about a customer which were clearly in breach of Wetherspoon’s social media policy. It was held that dismissal was a reasonable sanction as her comments reflected badly on Wetherspoons.

Employers however, do not have the right to dismiss employees just because they make derogatory comments on Facebook as the following case shows. Each case must be considered on its merits.

In Whitham V Club 24 t/a Ventura Ltd ET/1810462/2010 a Tribunal held that derogatory comments did not justify an employee’s dismissal. A thorough investigation and due consideration of the nature and effects of the comments must take place. Dismissal should not always be the appropriate sanction if there are mitigating circumstances and/or the comments are not serious or damaging to the employer or as in this case its relationship with a business partner.

There are lessons to be learned for employers and employees from these cases.

Employers should have in place a social media policy which all employees should be made aware of. The policy should give examples of what is considered unacceptable behaviour and the type of conduct that would be considered to be gross misconduct.

Employees should ask themselves what they could possibly achieve by posting comments on Facebook or any other social media platform which are done in haste, in the heat of the moment or through spite. If losing your job is the outcome then it will have been a very expensive post.

Ref/09/09/13/1

Unsociable social media?

Categories