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Posted on | Posted in Unfair Dismissal

In a time not so long ago, if an individual had a thought that they wanted to discuss, they would have to wait to get to a pub or a cafe in order to discuss it with a small cohort of friends. In the intervening time, they may well have forgotten what the thought even was! The advent of social media has dramatically changed this: individuals are now able to broadcast their views to thousands of strangers with the click of a button.

Whereas before less socially acceptable views may have been restrained by the disapproving looks of a friend, now the same views can be shouted from the comfort of an individual’s home with the further comfort of apparent anonymity.

Except that, on social media, individuals are far from anonymous: a search of an individual’s profile can quickly reveal who they are, where they live, their mother’s name and whether their cousin enjoys curry. In fact, the reader of a social network entry can know far more about an individual who “posts” a socially unacceptable comment than the person who overhears it with disapproval from the next table in the pub.

When an employee broadcasts offensive comments through social networks regarding their employers, and their employer is identifiable, disciplinary action will normally follow: such comments can embarrass and undermine an employer.

What happens if the employee posts remarks which, from the employer’s perspective, are socially unacceptable, but have nothing to do with the individual’s employment?

This was considered in the case of Smith v Trafford Housing Trust where an employee linked a BBC website regarding gay marriage to his Facebook wall and wrote a comment stating “an equality too far”. Later, for good measure, he added: “I don’t understand why people who have no faith and don’t believe in Christ would want to get hitched in church; the bible is quite specific that marriage is for men and women; if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn’t impose its rules on places of faith and conscience”.

A colleague saw the postings and complained to the individual’s manager. Disciplinary action was started and the individual was demoted, suffering a 40% pay cut. Was this fair? No, said the Court.

Some individuals may agree with the views presented, some will find them entirely unacceptable; however the Court

found that, not only could no rational individual believe that the comments made by the employee were made on behalf of the employer, but, also, that the frank but lawful expression of religious or political views may frequently cause a degree of upset, but that this is a necessary price to be paid for freedom of speech.

Trethowans’ view:

It is important to remember that employees have a right to express their opinions outside of work, even if those views contradict those of the employer. Before considering disciplinary action, consider carefully whether, objectively, the post could be deemed to reflect the views of the employer; if not, then disciplinary action will rarely be warranted.

www.trethowans.com

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