‘Facebook – we’re watching you!’

The teenager hit the headlines after she posted a stream of violent, racist and anti-gay comments on her twitter account. The episode illustrates how a person’s postings on social media platforms like Facebook and Twitter can land them in hot water with their employer. Employers are increasingly reviewing the profiles and postings of potential candidates and their employees as a “quality control” method. But how far can an employer go in exercising such control?

The recent case of Smith v Trafford Housing Trust [2013] is a reminder of the demarcation between employer and employee. Mr Smith, a Christian and lay preacher, had worked for the Trust for 19 years and had agreed to be bound to its Code of Conduct. The Code explicitly prohibited employees from promoting political and or religious views. In addition it also prohibited employees from engaging in activities which might bring the Trust into disrepute either at work or outside it, which included making derogatory comments on facebook about the Trust.

Mr Smith’s facebook account made reference to his housing manager role at the Trust. Some 45 people on facebook were his colleagues. On his facebook page, Mr Smith called himself “a full on charismatic Christian”. On the day in question, Mr Smith posted a link to a BBC news item about gay marriage with the comment “an equality too far” underneath. After two comments from work colleagues, he posted a second comment…” 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 stat shouldn’t impose its rules on places of faith and conscience.”

The Trust demoted him and reduced his pay by 40% for gross misconduct. It said that his comments had potential to cause offence, were seriously prejudicial to the Trust’s reputation and his position as manager, and were a breach of the Code of Conduct and Equality Policy. Mr Smith argued in the High Court that its actions were in breach of contract.

The High Court agreed that the Trust had acted in breach of contract for the following reasons: Mr Smith used facebook for personal and social reasons, he had expressed moderate views outside of work, and he had not promoted religious views but had taken part in a facebook discussion with people who had wanted to be his friends on facebook. It found that no reasonable reader would consider that his postings were on the Trust’s behalf. The court said that an employer might legitimately restrict or prohibit an individual’s freedom of speech and belief, for example promotion of religious views at work or in a work related context, but it would be “surprising” to extend that prohibition into a person’s personal or social life.

The case threw up a number of issues which may be helpful for employers and employees alike to consider: Employers must be clear as to how far their rules and policies extend to employees outside work hours, for example do employees know what they can and cannot do and say outside work particularly in relation to postings on social net working sites like facebook, twitter and LinkedIn? The Court found that Mr Smith had only discussed moderate views which had already been aired widely in public. The Court might have taken a different view in the event Mr Smith had promoted extreme views. A key issue was whether Mr Smith’s facebook page was a social and private forum. The Trust was concerned that Mr Smith had many colleagues as facebook friends and was making such comments whilst in a managerial position. The Court found that Mr Smith’s facebook page was a social and personal account in which he posted comments on lots of different things from football to cookery to gay marriage. However it stated that an employee’s facebook page could acquire a work related context particularly where an employee made references to his employer, staff and clients, or type of work.

Points to Consider for Employers:

• Do you review candidates’ and employees’ public profiles and postings on social media sites like facebook and LinkedIn?
• Do you have any concerns if employees have colleagues and clients on such sites?
• Do you have a Social Media Policy? If so, are your employees clear on what they can and cannot say outside work, in particular about work, and clients.
• What acts constitute gross misconduct in your contract/handbook, and are employees clear about the sanctions they may face, including demotion or dismissal?
• What are your employees’ obligations upon termination? For example you might not want them to refer to past employment with your company or contact your clients on a social website like LinkedIn, Facebook or Twitter?

For further information, please contact our specialist Employment & HR team.