Employees phoning in sick and posting pictures of themselves on the beach or bragging about the extent of their hangovers on Facebook; we have all heard variations of this story before. The (predictable) response? *Groan, silly employee, good bye.*
But things have moved on a little in the world of the social media versus employer debate and a somewhat worrying picture is emerging. It seems that the right to express one’s personal views or criticise one’s employer (note: outside of the workplace) via a social media platform should not be taken for granted. Nor should employees rely on their ‘privacy’ settings to provide protection in circumstances where postings find their way onto the desk of their all seeing employer.
In the space of the last week, two stories have emerged about employees who have found themselves in trouble over Facebook postings.
The first concerns a Trafford Housing Trust (“THT”) employee, Adrian Smith, who is reportedly taking legal action against the trust who demoted him after his views of gay marriage on Facebook were brought to its attention. Mr Smith’s views against gay marriage were allegedly self evident from his comments which he had posted alongside news articles on the subject. He for example reportedly said that “The Bible is quite specific that marriage is for men and women” and expressed a view that gay marriage was an equality step too far.
Now had these comments been aired in the workplace, THT would almost certainly be justified in taking disciplinary action against Mr Smith and referring swiftly to its diversity and discrimination policy. This is because employees are of course protected in the workplace from discrimination and harassment on grounds of sexual orientation. Mr Smith’s comments may have been found by fellow employees (gay or straight) to be offensive and have given rise to a claim of harassment. Here, however, Mr Smith’s comments were made entirely outside of the workplace on a personal social networking site.
It seems that for the trust, the key point at which Mr Smith’s right to freedom of expression fell away was when Mr Smith included reference to himself as a THT manager on his profile. This, say the trust, put him in breach of its company policy which provided that staff were expected to ensure that their personal opinions could not be mistaken for the opinions of the trust.
Contrast these facts then to the Employment Tribunal decision reported this week by People Management Magazine concerning the iconic brand Apple. In fact so iconic is the value of Apple’s brand, the company deemed it necessary to dismiss one of its employees after he posted allegedly derogatory statements on Facebook about Apple and its products.
In the unfair dismissal case (Crisp v Apple Retail) that followed, Apple was able to successfully argue that the dismissal was reasonable in order to protect brand image: it was held to be justified and proportionate to limit Mr Crisp’s freedom of expression in order to protect Apple’s commercial reputation against potentially damaging posts.
Whilst it is only possible to speculate on whether the derogatory comments made by Mr Crisp were sufficiently damaging to justify his dismissal (the case not having been reported and Mr Crisp’s comments themselves being unavailable), the case does throw up some interesting points to keep in mind in the context of employee’s postings via social media:
· Posts made on Facebook sites (and presumably other social networking sites), even potentially outside of working hours, are not beyond the reach of workplace social media policies: Apple was found to have a clear social media policy which prohibited commentary or criticism of Apple products or brand and such prohibition was accepted to be reasonable in this case.
· It is of little or no defence for an employee to argue that his/her postings are private on the basis of ‘privacy’ settings restricting public viewing of his/her wall: here the Tribunal decided that there was nothing to prevent friends of Mr Crisps from copying and passing on his comments.
· Employers who can establish the potential damage that might be done to their brand or reputation and who have put in place comprehensive social media policies prohibiting derogatory remarks about their businesses have a good chance of being able to rely on the policy to counter employment claims from employees who are disciplined or even dismissed in response to breaches of that policy.
Turning back to the case to be brought against THT, it is understood that Mr Smith is bringing claims for interference with his rights of free speech, religious liberty and breach of contract. Whilst it is difficult to anticipate how that claim will fare without details of THT’s social media policy or the extent to which Mr Smith’s profile linked him to THT, it would seem that he may have an uphill struggle to establish that his actions fell beyond the scope of the trust’s policy. Whether the trust’s response to demote Mr Smith was reasonable will be another question for the Tribunal.
As a final word, employers might want to keep in mind that whilst a comprehensive social media policy can be useful in circumstances where employees’ social networking activities can potentially cause serious harm to the business, sometimes taking drastic steps such as those chosen by Apple may ultimately cause far more damage in terms of PR and brand image than those which could ever have been caused by a single employee’s Facebook post. For Apple, whose brand aficionados perhaps tend to veer on the tecchie side of the spectrum and be prolific social media enthusiasts, this news will not fit so well with the modern brand that Apple tries so hard to perpetuate.
Anna Birtwistle, associate, CM Murray LLP @AnnaYoshica
1 It is worth noting however that gay rights groups have called for the reinstatement of Mr Smith saying that his views are not particularly homophobic and advocating Mr Smiths right to expression in a democratic society.