Even messages on private Facebook pages can get employees fired

by Employment Blawg on November 14, 2012

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Guest post regarding employment law and social media from At The Glasgow Law Practice. The GLP advise employers and employees in relation to issues arising from Social Media use and Employment Law.

IRRESPONSIBLE posts on social media can lead to dismissal – even when they are made outside work.

The following case demonstrates that even if an employee thinks their Facebook Page is private, their employer will still be entitled to take action in response to their comments.

Samuel Crisp v Apple Retail (UK) Limited

Mr Crisp was employed as a Specialist in the Respondent’s store.He discussed with his employer a possible transfer to the USA. Mr Crisp required permission to work in the USA and the Respondent would not sponsor him for a visa. It seemed that the Claimant was upset about this, which affected his relationship with his employer.

Mr Crisp posted a variety of comments on his Facebook page, such as “jesusphone” and other alleged derogatory comments regarding Apple products. These comments were brought to the attention of the Respondent by another employee who was one of the Claimant’s Facebook friends. As a result the Claimant was suspended from work and an investigation commenced. The Claimant was invited to a disciplinary hearing. The basis for the disciplinary action was given as bringing the name of the company into disrepute and specifically for making comments on Facebook about Apple products and his personal feelings.

In his defence, the Claimant argued that his Facebook page was private and only his Facebook “friends” have access to it. Furthermore he did not say that he worked for Apple. The Respondent took this into consideration but decided that the posts could potentially have a wider audience than the Claimant’s Facebook “friends” and that the Claimant did not have control over who might see this information. The decision was made to dismiss the Claimant on the grounds of gross misconduct. The Respondent issues a Facilitator guide which stated employees should be mindful of how they present themselves in public, in online social networks and on blogs. It stated that activities outside of work that affected Apple’s business interests were still covered by company policies and guidelines, whether or not the author was identified as an Apple employee.

Claim for Unfair Dismissal

The decision to dismiss the Claimant was upheld at Appeal. Mr Crisp thereafter raised a claim for unfair dismissal to the Employment Tribunal.

The Employment Tribunal held that the Claimant’s dismissal was fair.

When coming to their decision the Employment Tribunal considered whether the provisions of the Human Rights Act 1998 affected their decision in relation to reasonableness of the dismissal. Particular attention was paid to Article 8, the right to respect for private and family life, home and correspondence and Article 9, the right to freedom of expression.

In relation to Article 8, the key issue for the Tribunal was whether the Claimant had a reasonable expectation of privacy over his Facebook posts. The Tribunal held that the Claimant did not have a reasonable expectation of privacy over this information as the nature of Facebook and indeed the internet is that comments can easily be forwarded on to others and the Claimant cannot control how his comments may be passed on.

Considering Article 9, the Tribunal held that the Respondent’s conduct in limiting this right in order to protect its reputation was one of the justifications allowed by the Article 9. The comments made by the Claimant were potentially damaging to the Respondent’s reputation.

Social Media and Potential Disciplinary Action

This case demonstrates that the use of Social Media by employees can lead to potential disciplinary action. It also highlights the importance of Employers having written guidelines in place so they can show that employees were warned about the dangers of online comments made which may be derogatory or bring the company into disrepute.

At The Glasgow Law Practice, we advise employers and employees in relation to issues arising from Social Media use and Employment Law. For further advice please contact us on lb@theglasgowlawpractice.co.uk.

Employment Blawg

Employment Blawg

Employment law blogger at LabourBlawg
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