The Freedom of Facebook
There have been two recent cases concerning Facebook which are important for employers to be aware of:
FREEDOM OF SPEECH
The first case, Smith v Trafford Housing Trust , concerned an employee expressing views which his employer deemed were contrary to its Code of Conduct. The employee who was of Christian faith made comments on his Facebook page about not approving of gay marriage. His Facebook profile identified him as a manager at the Trafford Housing Trust and 45 of his Facebook friends were from his place of work.
The employee was contractually bound by his employer’s Code of Conduct which meant that he had to show commitment to the aims of the employer, maintain a positive image of it and not to engage in activities which may bring it into disrepute (including activities outside of work). The Code specifically mentioned that the employer did not permit ‘unruly or unlawful conduct on sites such as Facebook’. As a result, the employer subjected the employee to the disciplinary process and imposed a penalty of demotion.
The High Court held that the demotion was unlawful as it was clear from the employee’s Facebook page that it was purely for personal use and the content was not work related. The employee was entitled to express his views about gay marriage on Facebook without committing an act of misconduct. Therefore, the employee succeeded in successfully claiming breach of contract.
The employer in this case could have demoted the employee but only if his actions amounted to gross misconduct. The High Court found that this was not the case which therefore resulted in the employee’s demotion being a breach of contract. The employee could have claimed unfair dismissal and been successful on this ground too but because he didn’t, his compensation was limited to compensation for breach of contract.
The second case, Novak v Phones 4U Ltd, related to whether comments made on Facebook can amount to a ‘continuing act’ in a discrimination claim. The employee, who was disabled, had an accident at work in February 2010 and had not returned to work as a result. Following his accident, a number of colleagues made comments on Facebook leading to the employee making claims for race and disability discrimination, harassment and victimisation.
He relied on two periods of time during which the comments were made. Between 31 March and 21 May 2010, postings were made about him by a number of employees on the Facebook site about his accident. They remained on the site until 9 July 2010. One employee in particular gained a number of ‘likes’ in connection with a comment he’d made. A number of other messages were left between 26 and 28 July 2010, again about the employee’s accident and his subsequent grievance.
It was important for the employee to be able to show that both periods of time were linked because part of his claim was that his employer failed to take steps to stop the Facebook postings. As the employee did not file his claim until 9 September 2010, unless the two sets of postings were linked, complaints in relation to the first set of postings would be out of time. Initially, the tribunal Judge deemed them not to be linked but on appeal, it was found that they were based on their subject matter and those making and/or liking the posts.
TIPS FOR EMPLOYERS
- Outline in your policies what is and what is not acceptable ‘online’ behaviour. You cannot prevent your employees from having a life outside of work or from having opinions but you could state that you do not want them to state on their personal profiles where they work for example.
- Educate your staff on what online bullying is, how to report it and what the consequences will be if someone is found guilty of online bullying.
- Deal with matters informally to begin with wherever possible. Informal approaches can lead to more workable and long term solutions.
- REMEMBER…..if you want to make any changes to an employee’s contract of employment, follow the correct steps, otherwise, the employee could make a claim against you.
*originally posted in December 2013