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Facebook – it's a fine line

29/11/2012
Two recent cases demonstrate the fine line which employers have to tread when dealing with potential employee misuse of social media.The first case, Smith v Trafford Housing Trust, involved a Two recent cases demonstrate the fine line which employers have to tread when dealing with potential employee misuse of social media.

The first case, Smith v Trafford Housing Trust, involved a Christian employee who posted his views about gay marriage on Facebook. His Facebook status disclosed that he was an employee of the Trust and a number of work colleagues were Facebook friends, one of whom was offended by his comments. After a disciplinary process, the Trust demoted Mr Smith for gross misconduct on the basis that his comments had the potential to cause offence, could prejudice the Trust's reputation and breached its Code of Conduct, which obliged employees not to promote religious and political views.

The High Court held that Mr Smith was entitled to express his views about gay marriage on Facebook. Key considerations were that Mr Smith's Facebook page was clearly for personal, rather than work related, purposes and his comments were made outside of working hours, so that no reasonable reader would conclude that his Facebook postings were made on the Trust's behalf. Mr Smith's views were also commonly held and espoused in the press and not, viewed objectively, offensive. There was therefore no reputational damage to the Trust.

Interestingly, given the growing case law in this area, this case establishes that there are limits on an employer's right to restrict an employee's freedom of speech on social media; while this could be appropriate in work or work related situations, this was quite narrowly construed. The Court rejected the idea that having Facebook friends who were work colleagues imparted a work related context; this would impose too great a fetter on freedom of speech. The Court also recognised the importance of freedom of speech even where it could cause offence to those with contrary viewpoints.

The second case, Novak v Phones 4U, involved an American employee with a disability who fell down the stairs at work and commenced long term sick leave. In this case, a number of Mr Novak's colleagues posted on Facebook making fun of his accident. The postings took place over two separate periods in time, with a seven week gap between. Mr Novak brought claims of disability and race discrimination, harassment and victimisation. It is not clear from the judgment what steps Mr Novak's employer took in relation to the Facebook postings.

The Tribunal found the two sets of postings to be insufficiently connected in terms of subject matter and individuals involved to be a continuing act of discrimination, which would have meant that time for submitting a claim would run from the last act of discrimination. Elements of Mr Novak's claim were consequently ruled out of time by the Tribunal.

However, upon appeal the EAT found that the Facebook postings by Mr Novak's colleagues were part of a 'continuing act' of discrimination. The Judge raised an interesting question as to whether an act of discrimination would continue throughout the period in which the posts remained on Facebook; however, this question did not need to be determined and the EAT made no ruling in this regard. While the judgment focused on whether elements of Mr Novak's claim were brought in time, it also provides a timely reminder of the potential liability an employer may face for acts of its employees on social media.

With the news this week that the BBC has fired two members of staff for misusing social media and imposed an informal ban on its staff 'tweeting' about its 'problems', these cases demonstrate the issues that can arise from the interaction between an employee's right to freedom of expression and an employer's right to protect itself from reputational damage and its employees from discrimination. With the continued rise in popularity of social media, both inside and outside the workplace, the competing rights of employers and employees in this area will undoubtedly lead to further litigation.

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