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Beware the Dangers of Posting Comments on Facebook...

Further to Jenny Gibson’s blog on social media on 30 November 2011, the Northern Ireland industrial tribunal (the term “employment tribunal” is not used in Northern Ireland) has held that an employee who posted vulgar comments about a female colleague on Facebook was not unfairly dismissed and that his dismissal was not in breach of his human rights.  Whilst this is only a first instance decision, this case is a useful illustration on the extent to which employers can take action with regards to employees’ comments on social media pages.

Mr T posted vulgar comments about a female colleague on his status on Facebook on several occasions.  These comments were brought to the attention of the employer and a disciplinary process then took place, following which Mr T was dismissed by reason of his gross misconduct for (i) harassment of a fellow employee; and (ii) bringing the company into “serious disrepute”, as one of the comments included the name of the employer, both of which were stated in the employer’s various policies to be capable of resulting in immediate dismissal.

Mr T brought claims for unfair dismissal and also breaches of Article 8 (right to respect for private and family life), Article 9 (right to freedom of thought and to manifest one’s belief) and Article 10 (right to freedom of expression) of the European Convention on Human Rights (“ECHR”) (enacted in England and Wales through the Human Rights Act 1998).

The tribunal found that the finding of harassment was a reasonable conclusion for the disciplinary panel to reach – the comments were unwanted and violated the female colleague's dignity, creating a degrading and humiliating environment. However, the decision to find Mr T guilty of having brought the company into “serious disrepute” was not upheld – the panel had not considered at all the seriousness of the disrepute and there was no evidence that the company had been brought into disrepute at all. However, the tribunal found that Mr T was fairly dismissed in respect of the harassment. There were deficiencies in the employer’s investigation, but it was held that these were corrected when Mr T appealed his dismissal.

The tribunal also held that Articles 8, 9 and 10 of the ECHR had not been engaged as (i) Mr T had put his comments on a public webpage and so could not consider them to be private; (ii) Mr T had made comments about another employee’s sexual behaviour which was not a “belief”; and (iii) the right of freedom of expression did not entitle Mr T to make such comments about, and harass, a colleague.

Employers should ensure they have social media policies in place and amend their disciplinary procedures accordingly in order to (i) minimise the prospect of such incidences occurring within their organisation; and (ii) maximise the prospects of being able to justify disciplinary action when such incidences so occur including, in appropriate cases, dismissal. Advice should be sought before commencing any disciplinary action in order to minimise the risk of liability for unfair dismissal. Employees should be careful that they do not post comments on any public social media which could result in disciplinary action being taken against them.

Lanyon Bowdler are able to advise on employer and employee rights in respect of disciplinary issues involving social media. If you require any advice, please contact me on 01952 211028 or at bethan.jones@lblaw.co.uk