The Risk of Inappropriate Use of Social Media: Fair Dismissal for Inappropriate Comments on Facebook
Under English law, workers have the right not to be unfairly dismissed. The employer must determine that the reason for dismissal may be a valid reason. In order for the dismissal to be fair, the employer must also comply with a fair procedure. To establish the fairness of the dismissal case for behavioral reasons, the employer must be able to demonstrate that at the time of dismissal:
The staff member was found guilty of misconduct.
There were reasonable grounds to believe that the officer was guilty of this misconduct.
He did as much research as was reasonable in the circumstances.
The question of whether the employer acted reasonably should be assessed objectively: was the employer’s decision to dismiss part of the reasonable answers that a reasonable employer could take in those circumstances and in that business? The court cannot replace its position with the employer’s position.
The right to freedom of expression
The basic rights of residents of European member states are protected by the European Convention on Human Rights (Convention). These rights include the right to freedom of expression (Article 10 (1)).
The right to freedom of expression ‘can be governed by any formality, conditions, restrictions or sanctions prescribed by law and necessary in a democratic society in the interests of national security, territorial integrity or public security, in the event of riots or crimes, to protect health. or morality to protect the reputation or rights of others, prevent the disclosure of confidential information or maintain the authority and impartiality of the judiciary.”
The Human Rights Act 1998 (HRA 1998) enacts most (but not all) contractual rights and enforces them in UK courts. As far as possible, basic and by-laws should be interpreted and enforced in accordance with the rights enshrined in the Convention (section 3, HRA 1998). Government authorities also operate unlawfully in violation of contractual law (Article 6 (1) HRA 1998).
In the latest Facebook case, the court investigated whether the cafe manager was honestly fired after posting negative comments from customers on his Facebook page and whether his right to free speech had been violated.
The court rejected his application.
The court ruled that the employer had launched a reasonable investigation into allegations of serious misconduct, namely that the complainant had been interviewing on Facebook. The conversation was clearly about work and led to an exchange of views that many people, including the clients themselves, could read. The sanction of dismissal was one of the reasonable answers offered to a reasonable employer.
The Court held that if an employee had the right to freedom of expression under article 10 of the Convention, the employer’s actions were justified because of the risk of reputational damage.
The court found the behaviour of the buyers offensive and shocking. However, Facebook posts took place over a long period of time, after the situation calmed down and it began to work normally. The employee knew that she could use the hotline to get advice from an experienced manager or, if she was sad, ask for permission to retire earlier.
For employers, this case underscores the importance and usefulness of a well-defined policy on the use of social media. The lesson for employees is not to use Facebook or similar media to express frustration at work.
All articles are for public use and public use and are not legal or professional advice.
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