Facebook: the latest lessons for employers

Posted by Sarah Peacock on
For employees, it's a reminder that your "Friends" on Facebook can be a much wider group than you think (including "Friends of Friends"); for employers, it's a reminder that the boundary between work-life and private-life is still very blurred.

The case of Adrian Smith who was demoted for his comments on Facebook about proposed gay marriages in church is still a hot topic for employers and was widely reported in the press. Mr Smith, who worked for a private housing trust as a manager, is a practising Christian with many Christian friends. He posted a link on his Facebook wall to a BBC news article called "Gay church 'marriages' set to get the go-ahead" and added the comment "an equality too far". When a colleague, also via Facebook, asked whether this meant he did not approve, Mr Smith posted this reply:

"no not really. I don't understand why people who have no faith and don't believe in Christ would want to get hitched in church, the bible is quite specific that marriage is for men and women, if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn't impose its rules on places of faith and conscience."

For this Mr Smith was suspended on full pay and an investigation and disciplinary hearing were conducted. He was told he deserved to be dismissed for gross misconduct, but because of his long record of loyal service he would instead be demoted to a non-managerial position with a 40% reduction in pay phased over 12 months. Mr Smith was out of time to bring a claim for unfair dismissal; his claim was for breach of contract. He succeeded, and in fact the High Court found that he had effectively been dismissed from his old role and re-engaged in a new role because his employer had imposed such radically different terms on Mr Smith that it constituted a dismissal. However, due to a technicality he was only awarded damages of £98. If Mr Smith had claimed unfair dismissal, the Court's view was that in all likelihood such a claim would have succeeded.

Despite the small award, employers should take note of the Court's findings. It concluded that the employer had no right to demote Mr Smith, and was therefore in fundamental breach of contract, because:

  • Mr Smith's opinions on his Facebook page were interspersed with comments about sport, food, motorcycles and cars. A reasonable reader of the postings could not rationally conclude that his comments were made on his employer's behalf, even though he briefly identified his employer. It was obvious he used Facebook for personal/social rather than work-related purposes;

  • Mr Smith's views were moderately expressed, on his personal Facebook wall, posted on a weekend, out of working hours. In this context, his comments did not bring his employer into disrepute, notwithstanding its recent accreditation by a lesbian, gay, bisexual and transgender community organisation;

  • Mr Smith was not in breach of a policy not to "promote… political or religious views". He was not "promoting" his views to persuade recipients to accept them. In the Court's view, this prohibition applied to employees in connection with their work, and could not be interpreted to extend to their personal or social lives. It could extend to an employee sending targeted emails to work colleagues on a home computer outside working hours promoting political or religious views, but simply having 45 colleagues amongst his 201 "Friends" did not make the Facebook page work-related; and it was his colleagues' choice whether they viewed it or not;

  • Mr Smith was not in breach of a policy requiring employees to be non-judgmental with colleagues and not make them feel "uncomfortable…or upset". A posting passing judgment on the morality of a named colleague may well have breached such a policy. 

The Court's clearly-expressed views on the boundaries between work-life and private-life in the context of social media are particularly interesting following oursurvey earlier this year entitled "work-life/private-life: setting the boundaries". You can also see a summary of our key findings here.

Facebook comments were continuing discrimination

In another case, the Employment Appeal Tribunal (EAT) has ruled that an employee could argue that Facebook postings were part of a continuing act of discrimination. One of the allegations was that the employer had failed to take steps to stop a series of postings on Facebook which made fun of an accident suffered by a disabled employee. It was arguable that the gap in time and different employees involved in two sets of postings were nevertheless sufficiently linked to amount to a continuing act of discrimination (if proven). Although this was only a preliminary stage of a case, employers would be well advised to take action to stop a series of offensive posts as soon as they become aware of it.

ACAS on personal devices

Finally, ACAS has recently published a page with some issues raised by employees using personal devices at work, which also links to the ACAS fact-sheets and guidance on social networking.

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Sarah specialises in all aspects of employment law, including health and safety, offering comprehensive and pragmatic commercial advice.

Sarah Peacock
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