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29 November 2012

Facebook comments made by employees

Employers should take note of two recent cases which highlight the difficult issues related to the growing use of social media sites such as Facebook. 

Case 1

In the first case, Novak v Phones 4U Ltd, the EAT considered whether Facebook entries made about an employee by various colleagues formed part of a continuing act for discrimination purposes. The claimant was a disabled store manager who had been off work for some time following a fall down a staircase at work.  A number of colleagues made fun of the claimant’s accident, and as a result he brought claims for disability and race discrimination and harassment.

Further to this incident, Facebook entries were made by colleagues about the claimant and his accident, with a number of people signalling their agreement with the comments by registering a thumbs-up sign on Facebook. Consequently, part of the claim against the respondent was its failing to take steps to put a stop to the Facebook postings.

The decision

The EAT held that there was clearly a connection, in terms of the individuals, subject matter, and timing, between the original comments and the Facebook comments, showing that there is scope for comments made on social media sites to form part of a continuing act for discrimination purposes.  The EAT did not make any determination of the merits of the claimant’s case; only that for the purposes of pursuing his claim to a full hearing, the Facebook comments could form part of the alleged discrimination and harassment.

Comment

This decision highlights the potential risks to employers of their employees making comments about each other on Facebook, even in their own time.  Whether the employer will ultimately be held responsible for these comments remains to be determined, but it illustrates the point that vicarious liability can extend to activities by employees outside the working environment.  It also highlights the importance of putting in place a comprehensive policy covering the use of social media both within and outside the workplace.

A copy of the EAT’s decision is available here

Case 1

In the second case, Smith v Trafford Housing Trust, the claimant (who worked as a manager for the respondent) made a comment on Facebook about gay marriage, stating that marriage was supposed to be between a man and a woman and that allowing gay marriage was a sign of equality gone too far.

One of Mr Smith’s colleagues was offended by the comments when he saw them on Facebook, and the employer consequently took disciplinary action against the claimant. The employer found Mr Smith guilty of gross misconduct but imposed a  demotion rather than dismissing him from his managerial position. As a result, his pay was reduced by 40% from nearly £35,000 to around £21,000.

Mr Smith did not bring a claim for unfair dismissal but brought a claim in the High Court for breach of contract.

Interestingly, in this case the employee was bound by the provisions of a Code of Conduct, which provided that he must have regard to the need to maintain a positive image of the employer, to act in a non-confrontational and non-judgmental manner with customers and colleagues, and not engage in activities likely to bring the employer into disrepute (with express reference to Facebook).

The decision

The High Court held that the claimant did not breach his employment contract when he expressed his views about gay marriage on Facebook, and so the employer had not been entitled to label Mr Smith’s conduct as misconduct warranting demotion.  The Court did not accept that the comments were capable of bringing the employer into disrepute, even though Mr Smith had identified his employer on his Facebook page. The employer had therefore acted in breach of contract by unilaterally imposing a demotion on the claimant, effectively dismissing him from his previous role.

Comment

This ruling makes some important statements about social media, conduct outside work and freedom of expression. While an employer may legitimately restrict an employee’s freedom of expression and belief at work, or in a work-related context, employers cannot extend that prohibition to cover the employee’s personal or social life. When a comment is made on Facebook, a work-related context cannot automatically be presumed, even where the employee has Facebook friends who are colleagues.

The Court further commented that “the frank but lawful expression of religious or political views may frequently cause a degree of upset, and even offence, to those with deeply held contrary views, even where none is intended by the speaker. This is a necessary price to be paid for freedom of speech”. Employers should therefore take a proportionate view to comments that are made, and any action taken should be balanced with a mind to the right to free speech.

Previous cases involving comments made by employees on Facebook have also suggested that tribunals will not readily accept the argument that the potential for damage to an employer’s reputation is enough to justify a dismissal for misconduct.

A copy of the Court’s judgment is available here