The Risk of Inappropriate Use of Social Media: Fair Dismissal for Inappropriate Comments on Facebook

The law

Unfair dismissal

Under English law, employees have the right not to be unfairly dismissed. It is for the employer to establish that the reason for dismissal is a potentially fair reason. An employer must also follow a fair procedure for a dismissal to be fair. To establish fairness in a conduct dismissal case, an employer must be able to establish that, at the time of dismissal:

• It believed the employee to be guilty of misconduct.

• It had reasonable grounds for believing that the employee was guilty of that misconduct.

• It had carried out as much investigation as was reasonable in the circumstances.

Whether an employer acted reasonably must be assessed objectively: Did the employer's decision to dismiss fall within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted? A tribunal must not substitute its view for that of the employer.

Right to freedom of expression

The fundamental rights of the population of European member states are protected by the European Convention on Human Righs (the Convention). These rights include the right to freedom of expression (Article 10(1)).

The right to freedom of expression "may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".

The Human Rights Act 1998 (HRA 1998) gives effect to most (but not all) Convention rights and makes them enforceable in the UK courts. So far as it is possible to do so, primary and subordinate legislation must be interpreted and given effect to in a way that is compatible with the Convention rights (section 3, HRA 1998). It is also unlawful for a public authority to act in a way that is incompatible with a Convention right (section 6(1), HRA 1998).

In the latest Facebook case, the tribunal considered whether a manager of a pub had been fairly dismissed after posting negative comments about customers on her Facebook page and whether her right to freedom of expression had been infringed.

Decision

The tribunal dismissed her claim.

The tribunal held that the employer conducted a reasonable investigation into allegations of gross misconduct namely the claimant entering into a conversation on Facebook. The conversation clearly concerned work and culminated in views being exchanged that could be read by a number of people, including the customers themselves. The sanction of dismissal fell within the range of reasonable responses available to a reasonable employer

The tribunal found that although the employee had a right to freedom of expression under Article 10 of the Convention, the action taken by the employer was justified in view of the risk of damage to its reputation.

The tribunal acknowledged that the customers' behaviour was abusive and shocking. However, the Facebook entries took place over a lengthy period of time, after the situation had calmed down and she was working as normal. The employee knew that she could use a "hotline" to seek the advice of an experienced manager or, if she felt distressed, to ask permission to leave work early.

Conclusions

For employers, this case highlights the importance, and usefulness, of having a properly drafted policy regarding the use of social media. The lesson for employees is not to use Facebook or similar media as a way of venting frustration about work.

All articles are for general purposes and guidance only and do not constitute legal or professional advice.

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