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Social Media Sins: A justified dismissal or gross violation of employee privacy?

The lure of increasing brand visibility which the internet affords, has proved irresistible for businesses across the globe.



However the -love affair has sparked a lively debate over workers use of the internet, including social media, and the boundaries companies should set. Adding fuel to the fire are several, well-publicised cases, where employers have taken action or dismissed staff for their extra-curricular activities on sites such as Facebook and the like.


Take Kimberley Swann, for example, who when posting a comment on her Facebook page described her job as boring. She did not mention her employer by name but nevertheless, her employers felt that her display of disrespect and dissatisfaction undermined the relationship and made it untenable.

Dismissal swiftly followed.


Whilst many business owners may feel some sympathy with the employer’s reaction in the above example, the case raises important questions about the extent to which employers may be permitted to intrude into their employees personal lives and take action in response to what they find.


In another case made infamous by a viral e-mail, a certain Lindsay, was seized with a moment of literary creativity as she posted comments on her Facebook wall.

Such was her zeal in describing her employer in rather less polite terms, she momentarily forgot that he was listed as one of her friends and, as such, was able to view the comment. She then suffered the humiliation of what is probably the first Facebook dismissal, triumphantly posted for all her friends (and as it transpires, the entire nation) to see.


In Lindsay’s case, the employer had far stronger grounds for dismissing his employee. Unlike Ms Swann, Lindsay published her comments in a manner which clearly identified the employer. Moreover, the comments she made were clearly defamatory, leaving no room for misinterpretation. But there are grey areas. To what extent can an employer be justified in taking offence at comments intended for a closed network of friends?


Union Leaders have condemned the decision to ‘snoop’ on employees personal conversations, and said companies should grow thicker skins. Brendan Barber, TUC general secretary, said: “most employers wouldn’t dream of following their staff down the pub to see if they were sounding off about work to their friends.”


However, he would no doubt admit that if an employer overheard an employee sounding off in a public bar or (more likely) had such comments reported to him, it is likely that the unfortunate employee would suffer the same fate as the unfortunate individuals in the examples above. In other words, aren’t these cases merely a 21st century twist to an age-old rule that publicly denigrating one’s employer risks fundamentally breaching the contract of employment.


In terms of warding off an unfair dismissal case, employers would be well advised to set out a clear policy as regards their position on employees use of social networking sites. Existing internet policies can be extended to cover internet activity outside of the workplace where such activity has a direct and potentially damaging impact upon the employer’s business. Disciplinary rules setting out what will be regarded as gross misconduct might also be revisited.


For more advice or if you have any employment law issues please contact Mark Higgins on 0161 615 0655