Thu, 23 May 2013
By Nabila Mallick
Research conducted by ACASin 2011 indicated that 55% of all employees use social media network sites, such as Facebook, Twitter, Linked in and My Space, whilst at work. Inevitably this has brought new problems for employers in seeking to manage Employee behaviour. A few recent cases provide some guidance.
In Risp v Apple Retail (UK) ltd  ET, the Employer dismissed the Employee for making derogatory remarks on Facebook, notwithstanding that the privacy setting had been limited to friends. The Employer took disciplinary proceedings for the Facebook comment ‘MobileMe f***ed up my time zone for the third time in a week and woke me up at 3am? JOY !!”, At the disciplinary hearing the Claimant argued that his Face book page was private and the company was not brought into disrepute . The Claimant was dismissed for breaching, the Employer’s core value of product image protection and the Respondent’s social media policy. The Tribunal found the Claimant’s dismissal to have been within the band of reasonable responses. The Tribunal took into account the fact that the Facebook posts were not truly private and could in fact have been forwarded on very easily, with the Claimant having no control over this process. On the issue of the right of privacy the Tribunal found it was reasonable and proportionate for the employer to have relied upon the information that had come to its attention.
In the case of Teggart v TeleTech UK Limited (Northern Ireland IT), the Claimant posted obscene comments about a fellow employee, A’s, promiscuity on Facebook in his own time at home. A did not see the comment but was alerted to it. The comments identified Tele Tech UK Limited as A’s employer. An unidentified member of the public brought a complaint to Tele Tech. After investigation, the Claimant was dismissed for gross misconduct. On appeal the Claimant relied upon Article 8 (right to private life), Article 9 (freedom of belief) and Article 10 (freedom of expression) of the ECHR. The dismissal was upheld. On a claim for unfair dismissal the Tribunal decided that whilst the allegation that he had brought his company into disrepute was flawed, the Claimant was fairly dismissed for gross misconduct by reason of harassment of A. It further decided that the Claimant could not rely on Article 8 ,9 and 10, as his Facebook page did not allow for privacy, his freedom of belief could not extend to A’s promiscuity and his freedom of expression should be exercised reasonably.
In Smith v Trafford Housing Trust  3221 CH, on a claim for breach of contract for demotion as a sanction for gross misconduct, the High Court considered whether the Trust had made out its allegation of bringing the company into disrepute. The Claimant, a Christian, posted entries on his Facebook page expressing his disapproval of ‘gay marriages’. A complaint was made by a colleague to the Trust’s Equality and Diversity Officer. The Claimant was disciplined for Gross misconduct .The High Court held that the Claimant was not in breach of contract by reason of misconduct, since no reasonable reader could conclude that the postings on gay marriages were made on the Trust’s behalf and therefore he could not be said to have brought the Trust into disrepute. The court considered circumstances in which such expressions could be considered differently- for instance where the Facebook page had taken a work related context. The court further considered the nature of the expressions as mild and commonly heard on the Radio and Television. In this case, there was no criticism of the Employer, its Employees but an expression of opinion, which was not contrary to any of the Trust’s Policies.
It is evident from these cases that Employers should adopt clear social media policies as part of the staff handbook in order to establish greater certainty in this area.
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