News and Insights
28 September 2016
The need for clear guidelines
Every employer should have a social media policy, as the first line of defence and as a point of reference, which instructs employees on how they may use social media.
A number of questions arise on this:
- Can the employer rely on the employee’s private communication? Is it really private?
- To what extent can an employer monitor and investigate private communication?
Crisp v Apple in a recent case in the English Employment Tribunal, an employee was dismissed for posting derogatory comments about his employer on Facebook.
The employee argued that the post could only be seen by his friends, as a result of a privacy setting he had imposed. He claimed that under Article 8 of the European Convention on Human Rights, he had a right to respect for private and family life.
The Tribunal did not agree with the employee. The Tribunal said that he could have no expectation that his comments would not be passed onto others and therefore Article 8 right to privacy was not envoked.
The Tribunal also said that even if he had a reasonable expectation of privacy under Article 8, the employer had a right to protect its reputation under Article 8(2).
The lesson, therefore, is that the degree of privacy that is afforded to a communication is very important.
It is unlikely that there could be any reasonable expectation of privacy for an employee using LinkedIn. It is a professional networking site and the employee is likely to be linked to its employer.
Its specific purpose is for people to publicise their thoughts and opinions, so it would be very difficult for an employee to argue that they had a reasonable expectation that what they wrote on Twitter would remain private.
Monitoring and investigation
A Clear Policy on what is being monitored is key.
The policy should tell the employee what they can and cannot do when it comes to social media and what the possible consequences of breaching the policy are, otherwise the employer may find it difficult to fairly dismiss an employee in these circumstances. Check your policy on social media to be sure.
From the employer’s point of view, great care needs to be taken before delving into an employee’s social media profile. This may be justified where there is a serious allegation of wrongdoing on the part of the employee. However, any breach by the employer of its own policies and procedures on such matters is likely to be a breach of the implied duty of mutual trust and confidence.
What about routinely checking and reviewing employee’s social media profiles?
A clear policy, notifying the employee that this is being done, would be needed.
Employees have argued that they have a right to express their opinion and that Article 10 ECHR, Freedom of Speech, protects that right.
In Crisp v Apple the employee put forward the Article 10 argument.
The Tribunal agreed that Article 10 was engaged.
However, the Tribunal went on to say that whilst the employer had interfered with the employee’s right to freedom of speech under Article 10, it had done so in a way which was proportionate to the potential harm to its reputation, and the employer’s response was therefore reasonable.
Personal email accounts
Gosden v Lifeline Project Ltd
The employee in this case was dismissed for forwarding an email containing racist comments from his personal email account to a colleague who was working at the employer’s largest client. He was dismissed.
The Tribunal decided that the employee in this case was fairly dismissed because the comments were found to have brought the employer into disrepute, and the email contained instructions to pass it on. Therefore the employee had no right to privacy in respect of it.
Holmes v Petrovich Developments – It’s a Californian case.
An employee sued her employer for discrimination. Whilst defending the case, the employer discovered emails that the employee had sent to her lawyer, from her work computer, using her personal, password-protected, email account.
The employee argued that the emails were protected by the lawyer/client legal privilege and that they should not be used in the case by the employer.
The Tribunal held that they were not covered by the lawyer/client privilege as the employee handbook specifically stated that:
- Company computers could only be used for company business
- Employees were prohibited from accessing personal email on company computers
- The company monitored its computers to ensure compliance with the policy and may inspect all files and messages at any time.
So the message at the end of the day is check the policy on social media and personal email.
If the employer is acting within the policy then an employee may not have a reasonable expectation of privacy.