Posted: Friday, 4 January 2019 @ 13:43
Aaah... technology....The joys of using social media such as Twitter, Linked, Blogs and Facebook.
Facebook like other forms of social media allows individuals and businesses to communicate like never before. However, it also shows the increased blurring between individuals work and private lives particularly where staff write in a negative way about their employers.
Employees have always said and written things about their bosses and their workplaces but with Facebook news can travel really fast.
All employers now face a dilemma- On the one hand you want to protect your reputation and your business interests. On the other hand there is increased regulation and yes, your staff are entitled to a private life and to express themselves.
Many of your staff will use Facebook but what rights do you have to look at individuals Facebook pages?
The issue was partly considered in a recent case involving a bar manager who was sacked by her employer, Wetherspoons.
Briefly Ms Preece was subjected to a level of verbal abuse and physical threats from a number of clients including two regulars. While still at work Ms Preece vented her anger on her Facebook page from her phone and actually named the two regulars. Unfortunately the comments were seen by the regulars' daughter who made a complaint and this led to Ms Preece being sacked.
Ms Preece took the matter to Employment Tribunal but lost.
Social media is a new area of law but some principles can be applied.
1 The Courts will have to apply balance between right of expression (in this instance the Employee's right) and the Employer's rights. Article 10 of the European Convention on Human Rights provides a right to freedom of expression, but qualifies this with "the protection of the reputation of rights of others." Therefore the employee will not have carte blanche to criticise his or her employer on the Facebook page.
2 Employers must have policies and Contract to protect themselves. In the Preece case Wetherspoons had both a social media policy and a relevant clause in the contract of employment. A company will have greater rights to look at a Facebook page if there is something written to refer to. No policy will mean less right to look at Facebook pages.
3 Employee's conduct will be critical. Despite being severely provoked, Ms Preece was not helped by the fact that her Facebook settings were not private and more than 600 people had access to the messages and the fact that she was posting messages while still at work. If an employee were to post on a private Facebook page outside working hours, the right of the employer to consider it is much less.
4 Fair Investigations will be pivotal. Even if the dentist does have the right to see the Facebook page, it has to respect employment law such as fair investigations and allowing employees to bring colleagues.
Justin Patten, Solicitor and Mediator