Can an employee be disciplined for social media comments?

17 April 2013

Worthingtons Solicitors consider the implications for Employers and Employees when comments are made on Facebook, Twitter and other forms of social media.

With the rise of facebook and twitter employment issues arising out of the use of social media are becoming more and more common.

The Northern Ireland case of Teggart v TeleTech UK Limited provides some assistance as to the correct approach in these issues.  In this case the Tribunal upheld a decision by the Company when it dismissed an employee for gross misconduct after he posted offensive comments aimed at a co-worker on Facebook. In its decision the Tribunal stated “When the Claimant put his comments on his Facebook page, to which members of the public could have access, he abandoned any right to consider his comments private”.   In that case, the Tribunal found that an employee’s dismissal was fair.

Similarly, in the English case of Crisp v Apple, the Employment Tribunal found that Apple’s dismissal of Mr Crisp was fair when he published comments on his facebook page criticising his employer and its products.

These Industrial Tribunal cases however should be contrasted with the decision of the High Court in Smith v Trafford Housing Trust. In this case Mr Smith, posted a link to a BBC article on his facebook page headed, “Gay church marriages to be given the go ahead” together with the comment, “an equality too far”. In contrast to theTeggart case, the High Court’s judgment considered the extent to which Mr Smith’s page was accessible to the public. His page identified him as an employee of the Trust. He had 45 work colleagues among his Facebook friends and his wall was accessible by all 201 of his Facebook friends and also “friends of friends”.  In this instance the High Court found that the "moderate expression" of Mr Smith’s particular views outside working hours on his personal facebook wall (even though he had identified himself as an employee of the Trust on his profile) could not amount to bringing the Trust into disrepute.

This case provides a reminder that employers should tread carefully when taking disciplinary action in cases involving social media. Each case should be considered on its own merits and Employers should implement a social media policy to set out precisely what is acceptable conduct when using social media sites. As always we recommend that Employers take professional legal advice before taking any action.

Should you have any queries in relation to this article submit your enquiry in the form below and a member of our Employment Law Team will be happy to respond.

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