Social media: caution required when disciplining for Facebook comments

Employers should not assume that they have the right to restrict an employee's freedom to express views on social media where these concern personal beliefs and do not have a work-related context (such as being about the employer or work colleagues).

An employee's explanation of his views on gay marriage on his Facebook page was not work-related. It will not be assumed that comments are posted in a work-related context simply because the employee has identified his employer on his Facebook wall, or because he has work colleagues as Facebook friends, where the rest of the content is clearly personal and social. Personal postings on a social media website, which work colleagues could sign up to receive, are different from an email sent to work colleagues. The employer's equal opportunities policy prohibiting the causing of offence to colleagues was construed as applying only to work-related contexts.

The court also ruled that the moderate expression of a view about gay marriage, which was not judgemental or disrespectful, was not misconduct, even though some colleagues disagreed strongly and found the view offensive.

The employee's demotion for misconduct therefore amounted to a dismissal and engagement on new terms; he was out of time to claim unfair dismissal and so only received his notice monies as damages for wrongful dismissal. (Smith v Trafford Housing Trust, HC)

Where Facebook comments are work-related (eg, abusive comments about work colleagues which could amount to harassment), employers should act quickly. The very nature of social media sites facilitates continued discussion on a subject and renders it more likely that the comments will form part of a continuing act, thereby extending the time limit for bringing a claim and potentially increasing the compensation payable for injury to feelings. (Novak v Phones 4U, EAT)