Facebook Fired


Facebook, Bebo and similar social networking sites give us an insight into social and personal lives. Even if a person takes their Facebook page off-line, there will still be a record of what they had posted on the internet, which remains accessible via search engines for the future. Undoubtedly searches of social media including blogs and forums can be useful tools to find out what current or prospective employees are up to in their private lives and consider how the record of this activity might impact on their organisation.

As social networking develops, we can see its impact in a wide range of areas. For example, a former juror was recently convicted in the UK of “Contempt of Court” for contacting the accused in the case (in which she was part of the jury) on Facebook.

Employees should be alert to the fact that the information they put on the internet may affect them and their employment prospects into the future. The fact that privacy settings are used does not mean that the posts are protected by confidentiality.

Information put on social networking sites may also be used for purposes other than that intended.

In addition, postings on social networking sites of text, videos and pictures can be used as evidence against the individuals involved. For example, in a personal injury claim if a claimant says that he has a serious back complaint from an injury which prevents him working and on the person’s Facebook page, there are contradictory pictures of the person break-dancing or salsa dancing, this can be used in evidence against the claimant. In the US, online evidence from the networking site Facebook is being used by divorce lawyers, employers and schools to determine the ‘goings on’ of spouses, workers, students and teachers.

But is it legal to fire staff for conduct on social networking sites?

This will depend on the types of restrictions put in place by employers in their social networking policies for employees on using the internet at work, in their internet use policy and the type of misconduct which arises.

In Taylor V Somerfield Limited 2007 [UK] an employee was dismissed for posting a video on YouTube of play fights with plastic bags in a warehouse. The Employee was dismissed by the Company for bringing the Company into disrepute. The Employment Tribunal found subsequently he was unfairly dismissed. There had been no investigation by the Company into what publicity the video had received to establish whether the Company had in fact suffered any damage to reputation. The Company could only be identified from the colour and pattern of the uniforms so it was quite difficult to identify the Company from the video. The video was also removed after 3 days. The Employment Tribunals look at the fairness of a dismissal and whether a sanction is proportionate to the misconduct committed in considering an unfair dismissal’s claim and found in this case there was no evidence of any damage to the Company’s reputation from this misconduct.

In the Irish case of Kiernan v A Wear Ltd [UD643/2007] a customer of A Wear complained about a post on the Bebo site by an employee about a manager of A Wear. The commentary was critical of the manager and used asterisks for some bad language. The manager was not named.

A Wear has an official presence on Bebo, as did the branch where the employee worked. There was no previous history of disciplinary issues with the employee. The Company did not accept the employee’s argument that the comments were private as they were published on a site accessible by the public. The Company accepted there was no damage to their reputation. The employee was suspended and subsequently dismissed. However, the Employment Appeals Tribunal found the dismissal was a disproportionate sanction, although it was a fair disciplinary process. It found the employee had contributed to her dismissal and so she was awarded only €4,750.00.

So how can Companies protect their organisations from employees’ actions?

Employers should have a simple clear policy setting out the conduct they expect from employees on social networking sites where the employee is identified as a member of the Company. The Company should specify when access to the internet is allowed by employees for personal use or whether computers and internet access at work are to be used for business purposes only. Employees should be reminded where personal videos, pictures and postings are uploaded onto social networking sites that there will be a record of these into the future and these may have an impact on their work, as they may breach requirements around confidentiality or other issues which may affect the Company’s business and the Company’s reputation.

Companies should retain a record signed by employees acknowledging receipt of the organisation’s social networking policy and agreeing to its terms.

This is a summary of recent legal developments, and specific advice should be sought in each case. If you have any queries in relation to the above, please contact Davnet or any member of our Employment Team.

Davnet O'Driscoll