Social media posts as grounds for dismissal
14 July 2021
The use of social media has grown exponentially in the past decade. The Covid-19 related lockdown has served to accelerate the growth in the number of people, and businesses, who use platforms such as Facebook, Twitter and Instagram on a daily basis.1
An increasingly common issue is the posting of controversial material to social media by someone in a personal capacity, and the degree to which this may cause them difficulties when such material is brought to the attention of their employers. In many cases, it is the victim of the offensive material who brings it to the employer’s attention. With increasing regularity, however, offensive material is being “called out” by other social media users, and employers are often subject to online pressure into disciplining employees who have published such material.2
It is clear that employees should not use their company social media accounts in an irresponsible manner, or post content unrelated to work on such accounts. The issue is more complex, however, when it comes to postings on the employees’ own personal social media accounts, and what kind of content may fall foul of company guidelines (if there are any) and result in disciplinary action being brought against them.
The widespread use of disclaimers on Twitter profiles, along the lines of “All views are my own and not those of my employer” suggests a belief amongst many users of social media that their personal posts cannot affect their employment. This is, as will be seen below, an ill-founded belief.
THE RIGHTS TO PRIVACY AND FREEDOM OF EXPRESSION
Underpinning many of the complaints brought by employees in such circumstances is the fact that their rights to privacy and freedom of expression have been violated. Both of these rights are protected by the Constitution, though it should be remembered that neither is an unqualified right. They are likewise given protection under the EU Charter of Fundamental Rights and the European Convention on Human Rights.
As regards privacy, the ECtHR has repeatedly stressed the fact that employees enjoy a right to privacy in the workplace.3 A recent decision of the ECtHR has considered the tension between an employee’s right to freedom of expression on social media, and an employer’s right to discipline or dismiss the employee for content which is claims is damaging to its reputation. In Melike v Turkey4 the applicant had “liked” a series of articles on Facebook which contained political commentary. Her employer, the Turkish Ministry of Education, considered the articles be offensive and likely to cause concern to teachers and pupils alike, and dismissed the employee without compensation.
The applicant claimed that her Article 10 right to freedom of expression had been violated, a submission with which the Strasbourg Court agreed. It first of all noted that the “liking” of content on Facebook should not carry the same weight as authoring, or even sharing, such content. It also queried whether the content itself could have had the effect that her employers claimed, pointing to its very limited publication. Significantly, the Court criticised the national courts failure to adduce any evidence of complaints having been made by teachers or pupils about the content, and whether the applicant’s “likes” had been met resulted in the concern which her employers had suggested would occur. The reliance on a bald assertion by the respondent that its reputation had been, or stood to be, damaged is an issue which this article will return to.
BREACH OF COMPANY REGULATIONS AS GROUNDS FOR DISMISSAL
There are three basic ways in which an employee might breach a company’s social media guidelines:
a) the posting of unlawful material,
b) the posting of inappropriate/ offensive material about work,
c) the posting of inappropriate/ offensive material unrelated to work.
a) The posting of unlawful material:
Clearly, unlawful material posted to social media will potentially result in dismissal, as can be seen in the 2014 case of Boyle v Portalon t/a Wamagama.5 A recent decision of the WRC, however, suggests that even unlawful behaviour may not be sufficient grounds for dismissal. In A Security Officer v A Security Company,6 the complainant was dismissed for sharing a video, in a private Facebook group, which contained images of child exploitation. The Adjudicating Officer held that the decision to dismiss was too severe, and ordered the complainant to be re-instated, but with a final written warning to be issued.
In this regard, they referred to the employee’s previous good conduct, the possibility that he had not been aware of the nature of the material, and the fact that the material “was not directed at the employer.” Of particular note in the decision, however, is the finding that the employer was partly at fault for its lack of policy on personal social media use (as opposed to internet use while at work). Furthermore, the Adjudicating Officer suggested that, as the security company operated a male-dominated workforce, it should have done more to train its employees in relation to the sharing of pornography. This finding appears to place a particularly heavy burden on employers to anticipate the type of online conduct that may be performed by its employees, and on the degree of specificity with which they must draft their employer’s Code of Conduct.
b) The posting of offensive material about the workplace:
The English case of Crisp v Apple Retail (UK)7 is important in respect of how comments made on social media by an employee may be held to damage a company’s reputation, a claim that regularly forms part of the justifications given for disciplining, or dismissing, an employee. The complainant had been dismissed as a sales assistant in an Apple Store for comments that he made on his personal Facebook page, having published criticisms of Apple products made by customers, to which he had added sarcastic comments which gave the impression that he agreed with the criticism.
The employer submitted that the complainant had previously undergone training, at which the importance of the company’s values were explained. He was also informed of the company’s social media policy in general, which included a specific policy that employees should not comment on Apple products of services on their personal websites. In upholding the dismissal, the Tribunal cited the importance that the employer placed on its image and the quality of its products, which was adequately communicated to the complainant, and noted his lack of co-operation with the investigative process, and apparent lack of contrition.8
A contrary decision, however, was arrived at by the WRC in A School Secretary v A National School.9 This involved a complaint by a school secretary who, following a period of sick leave, was asked to attend a back to work meeting, at which various allegations of misconduct were put to her. Amongst these was a post she had made on social media in respect of her work, which involved an image from the movie Despicable Me, with the words “Every day at work I wonder if this is going to be the day that I scream ‘F*** O** You C***’ out loud instead of just in my head.”
The complainant submitted that the school had no social media policy, that no training in respect of social media had ever been provided, and that the post was on her personal Facebook page. The respondent objected to the offensive language in the post, and submitted that the incident was serious enough to justify dismissa, as the secretary was often the ‘face’ of the school.
The Adjudicating Officer upheld the complaint, primarily on the basis of flawed procedures. In respect of the social media post, they held that the reaction to it by the employer was disproportionate in light of an absence of a social media policy, a further reminder to employers of the importance of having clear guidelines about social media use in the employee’s Code of Conduct.
c) The posting of inappropriate/ offensive material unrelated to work:
This is perhaps the most contentious area in respect of the right of an employer to bring disciplinary proceedings against an employee on account of their social media posts. It concerns material which is uploaded to an employee’s personal social media account, outside of working hours, and which features content which is entirely unrelated to their work, often taking the form of commentary on some topical item of news.
It is uncontroversial that an employee can lose their job because of an ill-considered post to social media. Sometimes, it can be as simple as an “ill-judged attempt at humour”, a situation which befell BBC presenter Danny Baker in 201910 and ITV news presenter Alaistair Stewart in early 2020.11 Just last week, former FAI boss Bernard O’Byrne was obliged to step down from his position as CEO of Basketball Ireland. O’Byrne had posted a comment on Facebook in which he joked about the winning of a penalty by a black English footballer, Raheem Sterling, with the words “black dives matter”, an ill-advised joke which resulted in swift condemnation both online and from his employers.
In May 2021, there was considerable publicity over the termination of journalist Eoghan Harris’ contract by his employers, Independent Newspapers. Harris had been revealed as one of the authors of content being published by an anonymous Twitter account, which contained some controversial posts of a political and personal nature. While a central issue in that case appeared to be the use of an anonymous social media account by a journalist to express opinions which he was either unable or unwilling to publish under his newspaper by-line, the ventilating of personal opinions on politics, religion or gender identity is as increasingly complex issue for employers. Such opinions may be at odds which what the employer considers to its own “core values”, and be held to amount to gross misconduct.
There can be difficulties involved in disciplining an employee for such material, particularly in the absence of any clear company guidelines as to what is permissible. In a 2012 decision of the English High court, Smith v Trafford Holding Trust,12 the plaintiff was demoted, and suffered a salary cut, on account of postings which he had made on his personal Facebook page which stated his opposition to gay marriage. The employee sued for breach of contract on foot of his demotion. The High Court upheld the claim, finding that being an equal opportunity employer like the Trust ‘inevitably involves employing persons with widely different religious and political beliefs’, meaning that readers of the comments were unlikely to believe that they represented company policy. It considered the Code of Conduct provision which purported to safeguard the company’s reputation as being overly-restrictive: “To construe this provision as having application to every situation outside work where an employee comes into contact with one or more work colleagues would be to impose a fetter on the employee’s freedom of speech in circumstances beyond those to which a reasonable reader of the Code and Policy would think they applied.”13
This decision can be contrasted with the very recent, and interesting, decision of the UK’s Employment Appeals Tribunal in Omooba v Global Artist & Leicester Theatre Trust.14 While it concerned a claim for discrimination and breach of contract – the complainant was an independent contractor– the principles in respect of damage to an employer’s reputation are extremely apposite.
The claimant was an actress who had been due to perform a production, in which the character she played was a lesbian. Shortly after her role was announced, a third party re-tweeted a Twitter post which the claimant had published 5 years previously, which stated her objection to homosexuality on religious grounds.
The theatre terminated her contract, although it agreed to pay her in full for what she would have earned. Her agency, furthermore, the first-named defendant, terminated its representation of her. The theatre specifically pointed to a public backlash by other Twitter users, which it felt was commercially damaging to the performance, and also that the reaction made it clear that it would be impossible for the audience to connect with her character. The complainant’s agency pointed to a similar backlash amongst its staff and clients.
The Tribunal upheld the termination of the actor’s contact. It pointed to the commercial reality that the production was bound to suffer due to the surfacing of her views, and used the negative commentary that the tweet generated as evidence that the production would be boycotted by the potential audience, or that the production might even be disrupted. “These were not fanciful possibilities,” the Tribunal concluded, “some were already being mentioned in social media.”
It pointed out that this did not amount to discrimination, as the reason for the termination was “the commercial and artistic reality of the cluster of factors that it would not succeed.” It likewise held that the agency behaved reasonably in terminating her contract, agreeing that the adverse publicity storm threatened its very survival.
This is a significant finding by the Employment Tribunal, as it appears to be the first time that a dismissal/termination of contract in respect of a social media post has been upheld, in which the reaction of other users on social media was the primary justification. There was no suggestion that the complainant’s post amounted to hate speech; while expressing her religious beliefs, she did not encourage any violence towards gay people. She also alluded to a tension between the actions of the respondents in cutting ties with her due to her religious beliefs, while at the same time relying on a policy of diversity and tolerance, a point which echoes the findings in Smith v Trafford Holding Trust, discussed above.
Most significant, perhaps, is the Tribunal’s reliance on the comments of users posted on social media, primarily Twitter, as evidence of damage to the companies’ reputations. It may be suggested that threats to boycott a particular brand or business occur regularly on social media, particularly when an organisation is the subject of criticism in respect of its treatment of employees. Such commentary, however, is often said in the heat of the moment, and whether a significant percentage of customers follow through on such criticism, and cause the company lasting damage, is open to question. It will be interesting to see, if a similar issue arises in this jurisdiction, whether the WRC takes threats made on social media at face value, or whether it would require actual proof that such damage had occurred.
This finding points to a related issue in such proceedings, namely the reliance by an employer as a reason for disciplining an employee on the allegation that their reputation has been damaged by an employee’s social media posts. This raises two questions. Firstly, does an employee have to state the nature of the reputation it is that it is seeking to protect? Secondly, does an employer have to adduce specific evidence as to any damage that has been caused to that reputation? In many cases, the employer will simply state that damage has been caused, without providing answers to either of these two questions.15 Similarly, it appears that employment tribunals are content to take at face value the statement that whatever the nature of the company’s reputation, it has been damaged by the employee’s behaviour.
An interesting exception to this rule can be found in the UK’s Employment Tribunal ruling in Whitham v Club 24.16 Ms Whitham had posted derogatory, though not overly insulting, comments about her employers on her personal Facebook page. She was dismissed on the basis that these comments brought the company into disrepute, though no evidence of such damage was sought or adduced. The Tribunal upheld the complaint, finding the company’s policy about internet use by employees outside of working hours to be overly vague. Significantly, however, the EAT also criticised the company’s presumption that the comments had caused reputational damage with its parent company, VW, without enquiring as to whether it had done so, and refused to accept that any damage had actually been caused.
SUMMARY
It is difficult to draw specific conclusions from the body of decisions on the subject, given the sometimes contradictory nature of decisions and the ongoing difficulty that tribunals have in dealing with publication on social media. It is, however, possible to make the following general points:
a) Employment tribunals will generally insist on a company having a specific internet or social media usage policy in place before upholding any dismissal related to such usage by an employee;
b) If monitoring of social media accounts is going to take place, this should be stated and the reasons for its should be explained. Such a policy cannot simply entail a blanket ban on social media usage at the workplace – see the important decision of the ECtHR in Bărbulescu v Romania;17
c) When certain types of personal social media use are curtailed, the reasons for such a policy should be explained, as well as the possible sanctions that may be imposed;
d) The type of online behaviour which may bring the employer’s name into disrepute should be explained, especially if it can involves behaviour which does not explicitly criticise the employer, or even mention it by name;
e) Where an employer has a particular reputation that it wishes to protect, the requirement that this reputation not be damaged by certain types of online behaviour should be made clear, and the to be factors considered in assessing whether any damage has occurred should be outlined;
f) If an employee is not allowed comment on his work via his personal social media accounts, due for example to issues pertaining to confidentiality, this should be stated explicitly.
g) If an employer doesn’t want its employees to operate anonymously on social media, it should state this, and also give reasons for the prohibition.
Ends.
*This article is an edited version and an update of a talk which I gave to the Employment Bar Association in May 2021.
1 Twitter, for example, recorded a 15% increase in users during the final quarter of 2020, compared to the equivalent period in 2019.
2 Following the recent loss by England in the Euro 2020 final, certain black players were subject to racist abuse online. When the identity of one of the alleged abusers was discovered, Twitter users directed posts towards his employer, Savills, insisting that they take action against him. Savills quickly responded by posting a message online to say that he had been suspended pending an investigation. See https://www.dailymail.co.uk/news/article-9780837/Pictured-Savills-estate-agent-claims-Twitter-account-hacked-racist-tweet.html
3 In Niemietz v Germany (Application No 13710/88, 16 December 1992), the Strasbourg Court held that “Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. There appears, furthermore, to be no reason of principle why this understanding of the notion of ‘private life’ should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world.”
4 Melike v Turkey (app no 35786/19, June 2021)
5 Boyle v Portalon t/a Wamagama (EAT UD 1735/2014). The complainant had taken a video of himself taking cocaine, allegedly in the restaurant’s toilets during a break from his work, while wearing a t-shirt which carried his employer’s name and logo, and uploaded the 25-second video to social media platform Snapchat.
6 A Security Officer v A Security Company (ADJ-00028296, October 2020)
7 Crisp v Apple Retail (UK) Ltd 1500258/2011
8 See also the 2010 English case of Preece v JD Wetherspoons (ET/2104806/10)
9 A School Secretary v A National School (ADJ-00004802)
10 Baker hadmarked the arrival of the Duchess of Cambridge, aka Megan Markle’s first child with a tweet featuring an image of a couple holding hands with a chimpanzee dressed in clothes, to which he had added the caption “Royal Baby leaves hospital”. In terminating his contract, the BBC said Baker’s tweet “goes against the values we as a station aim to embody.”https://www.bbc.com/news/entertainment-arts-48212693
11 Stewart likewise lost his job for a regrettable “Twitter spat” during which, while ostensibly quoting Shakespeare from Measure for Measure, he referred to a black political lobbyist as “an angry ape.”https://www.dailymail.co.uk/news/article-7950177/Alastair-Stewart-warned-inappropriate-comments-Twitter-times-before.html
12 Smith v Trafford Trust [2012] EWHC 3221 (Ch)
13 See also the UK Employment Appeals Tribunal 2014 decision in Game Retail Ltd v Laws
14 Omooba v Global Artist & Leicester Theatre Trust (ET 2202946/19)
15 See the ECtHR case of Melike v Turkey, discussed above.
16 Whitham v Club 24 Ltd t/a Ventura (ET 1810462/10)
17 Barbulescu v Romania (App No 61496/08, 5 September 2017)