Legal opinion: The risks of interfering in employees’ private Facebook use

The rise in the use of social media is a real worry for many employers. Employment lawyer Joanna Dodd says that in the recent case of Smith v Trafford Housing Association, the issue of employee monitoring has again caused controversy, not least because this particular judgment went against a number of previous decisions.

Facebook comments

Mr Smith was employed in a management role with Trafford Housing Trust. He described himself as a “full-on charismatic Christian” on his Facebook profile and highlighted the name of his employer. Many of his Facebook friends were fellow Christians and a number were work colleagues. Only his friends (and friends of friends) were able to view his profile.

Mr Smith posted a link to a news article on his Facebook page which discussed holding civil partnership ceremonies in churches. He commented that this was “an equality too far”, and that “the Bible is quite clear that marriage is for men and women”. A colleague saw the comments and complained about their homophobic nature to the Trust.

Disciplinary action results in demotion

As a direct result, Mr Smith was disciplined and demoted on the basis that the comments could be linked to the Trust as he described himself as an employee on his profile page. Specific concerns were that the comments could cause serious reputational damage to the Trust and that it might be considered to be promoting the views of Mr Smith.

When he was demoted, Mr Smith complained to the High Court. The Trust relied on its internal policies that governed the use of social media and denied having breached his employment contract by demoting him.

In recent years, there have been numerous cases involving the use of social media where the courts have found in favour of employers, so the decision in this one came as a bit of a surprise.

Facebook use was intended to be personal

The High Court was very clear that, while social media could be used for work purposes, Mr Smith clearly intended that his Facebook account was personal and had only used it in his own time. The court held, therefore, that no reasonable Facebook user would have read Mr Smith’s comments and linked them back to the Trust despite the fact that the Trust was listed as his employer. The comments, in the court’s view, went no further than those already made in the media and Mr Smith had used “moderate language” that freedom of speech entitles him to do.

Because the comments were posted for Mr Smith’s friends to choose to read as opposed to being circulated in an email, the High Court considered that no one was specifically targeted for the promotion of Mr Smith’s views.

What was particularly interesting in this case was the High Court’s decision that the very principle of equality meant that views among the workforce were likely to be diverse, and that frank expressions of those views could cause offence. This was the price of free speech.

Lessons for employers?

Employers need to bear in mind that employees have a right to use social media in their private time. If they wish to monitor such use, it is unlikely to be deemed acceptable by the courts. That does not mean that it is not sensible to have a quiet word with someone if colleagues raise concerns about improper use. The first step should be to resolve such an issue informally.

If formal action is ever required, a thorough investigation must always be carried out – one that gives careful consideration to all the facts of the case. Never jump to the conclusion that comments made via personal social media accounts will automatically be linked back to the business.

All members of staff should receive equality training. Workplace policies should also make it clear that acts of bullying and harassment towards colleagues, clients and suppliers etc, will not be acceptable whether in or out of the workplace, or in or out of work hours, and whether in person or via social media. It would also be sensible to highlight that staff should not behave in a manner that is likely to bring the business into disrepute, even in their own personal time.

Aside from highlighting that employees should check their privacy settings, this case serves as a reminder that a variety of disciplinary outcomes should be considered in every case, based on all of the evidence. A demotion could well be seen as a breach of an employee’s contract if it is not appropriate in the circumstances.

Joanna Dodd is an employment associate at Clarion

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