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The incredible rise of social media in the last decade has caused difficulties in the workplace. Employment and HR Law has struggled to keep up with a raft of new cases, and employees and employers alike struggle for clarity on the issue.
In his first article for Frettens, Employment Solicitor Chris Dobbs explores some of the most frequently asked questions about social media and employment law, and aims to provide some much-needed clarity.
Can I be fired for Social Media posts?
This is a developing area of employment law and one where, like so many others, the answer is ‘it depends’.
As a general rule, misconduct is misconduct. Gross misconduct can be a fair reason to be dismissed. It is very much a matter of scale and the reason why the employer has chosen to take action.
Therefore, yes, you can be dismissed for what you post on social media.
Can your employer check your social media?
You might think that your social media is part of your private life and nothing to do with your employer but most of us are very lax when it comes to privacy settings.
This means that not only can you employer see what you are posting (and have posted in the past) but so can possible clients, customer and professional contacts.
If this is the case then your employer may decide to take action if they think what you have posted presents a real risk to their reputation.
What if I criticise my employer or their product on social media?
In 2010, an employee commented on Facebook that her workplace was like working “in a nursery”. Her profile was private and so only her 50 or so friends could see this message and the subsequent brief exchange.
Her line manager was eventually informed of the messages which he deemed “unacceptable” and she was sacked without notice for possible reputational damage to the company’s relationship with a third party.
The tribunal found that this dismissal was unfair because she was complaining about her working conditions and the people around her, not the third party. They were particularly critical that the employer did not obtain the views of the third party. There were also strong mitigating, personal circumstances in the employee’s favour.
What is the law on Social Media Misuse?
In the case of Crisp v Apple Retail (UK) Ltd the employee used social media to make negative comments about Apple products. He raised human rights issues when Apple enforced its strict social media policy in disciplining him.
Employees of Apple are trained to be mindful of how they present themselves in public, including their online presence, and it was the case that these comments could affect the image of the company.
The tribunal found that dismissal was within the reasonable range of options available to the employer in this case.
Mr Crisp’s human rights argument backfired when he produced screenshots of other employee’s social media pages in trying to establish his right to privacy thereby proving that content posted online is actually publicly available.
Can you be fired for racist social media posts?
One of our articles earlier this year 'Race Discrimination through Social Media Platforms' explored a case where an offensive message posted outside of working hours did not justify a dismissal because it was not connected to the employee’s employment.
The Tribunal was lucky in this case that it did not have to explore the difficult issue of whether the content was actually racist in nature, which it would, undoubtedly, have concluded to be the case.
What is a racist social media post?
The Employment Tribunal is not concerned with ‘racist’ in the way that we might use it on a daily basis. Instead, the legislation uses terms such as ‘treats less favourably’ and ‘conduct’ which ‘has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment’.
These are, arguably, much looser definitions. You do not have to intend to offend someone in order to commit harassment on the basis of a protected characteristic. It just has to have that effect.
Offensive social media posts
Interpretation of the Equality Act goes even further. You do not have to share the protected characteristic of the allegedly offensive content to be harassed by it. You can be associated with it or perceived to have it or even just take offence at the content generally.
In English v Thomas Sanderson Blinds, a straight man claiming harassment after being offended by homophobic comments directed at him was successful in his case.
What might or might not be ‘racist’ or ‘sexist’ or ‘homophobic’ is therefore a matter of opinion for the person who brings the claim. It is for them to show that the content of the social media post had the effect of creating a hostile environment for them.
Forstater v CGD Europe
In a similar case, Ms Fostater was fired after she made what her employer considered to be a transphobic Social Media post; she claimed unfair dismissal. You can read our following article on transgender discrimination and philosophical belief here.
Can old social media posts be used against me?
There are many examples, usually of celebrities or politicians, where historical social media comments have surfaced and action taken many years later.
There is no doubt that many of us will have posted thoughtless comments as teenagers and it might seem unfair that these can come back to bite us later. It might be unfair personally but the Tribunal has ruled that it can be fair legally.
In Creighton v Together Housing Association Ltd, Mr Creighton was fired for making derogatory comments about colleagues and his employer on Twitter three years earlier. The posted comments where offensive but did not relate to any protected characteristics.
Mr Creighton argued that he thought his comments were private, they were old and he had a long record of good service at the company. When he was dismissed and lost his appeal, Mr Creighton took his claim to tribunal.
The Tribunal ruled against him and found that the employer was entitled to take action for conduct when it discovered that conduct. The Tribunal particularly noted that “the derogatory comments had been made on an open Twitter account, were visible to anyone and would be there forever”.
Advice on social media posting for employees
The conclusion is to be very careful what you post on public social media. Anything you post, comment, reblog or like is recorded somewhere - permanently.
The most appropriate thing to take from this is more a social comment than an employment law issue: if you wouldn’t say it at work, don’t post it where work might see it.
Free initial advice
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and someone from the Employment Team will be happy to discuss it with you.
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