The short answer is yes. In certain circumstances you can be legally sacked for what you say on Facebook, Twitter or other social media. Even if you are at home and just speaking to friends.
When can you be legally sacked? It depends on whether it was reasonable to do so following certain guiding principles. However it is not straight forward. There are cases where the law has supported the employer and apparently similar cases where the law has supported the employee. It is often hard to spot the difference. Ultimately it depends on the facts of the case and one small facet of the case can make all the difference. Some real cases;
Case one – Mr Smith worked for the British Waterways Board. He was sacked for gross misconduct for derogatory comments he made about his managers on Facebook, and boasts that he had been drinking alcohol whilst on duty. The comments included: “that’s why I hate my work for those reasons it’s not the work it’s the people who ruin it nasty horrible human beings”; “why are gaffers such p*****. His dismissal was held to be fair. British Waterways Board v Smith UKEAT/0004/15
Case two – Mr Trasler worked for B&Q. He was sacked for his Facebook comments. He posted that his “place of work is beyond a f****** joke” and that he would soon be “doing some busting”. His dismissal was held to be unfair. Trasler v B&Q ET/1200504/12
So what gives?
The law says an employer can dismiss an employee for conduct outside of work including social media activities provided it can demonstrate that the employee’s conduct undermined their employment relationship, or affected their ability to do their job, or in some way damaged their reputation or interests.
There are now a fair few social media unfair dismissal cases with the decisions split evenly between Employer and Employee. The determining factor is the application of these guiding principles to the particular facts of the case. As a rule of thumb a tribunal will ask these questions.
Did the Employer have a clear policy on social media usage? If the employer can show that they did have a clear policy and the employee simply ignored it then the law may lean towards the employer.
What exactly did the Employee say? Was the Employee merely letting off steam or were their comments discriminatory or bullying? How bad were the comments?
Who got to read the comments? Was it accessible to everyone or only a select few? The more who saw the comments the more serious it is likely to be construed – especially if the targets of any comments got to hear of them.
What is the role or status of the employee? The more senior or responsible the employee the less latitude will be given. What a warehouse or shop worker says may be treated less seriously than what a teacher or social worker says.
Did the comments actually cause damage or distress? It is not enough to claim the comments were wrong they need also to show damage was actually caused. How has it undermined the relationship? How has it damaged the reputation of the employer? Who suffered a detriment?
Employees will reasonably consider that their employer has no business telling them what they can do out of work. The law indeed recognises an employee’s right to privacy. But beware. If you chose to make statements on social media that the public can see you will have given up that right. Further if you say things that your employer does not like it could get you the sack.
So watch what you say. Use common sense. If you want to slag off your boss don’t do it in writing and don’t do it on social media!
For advice on any aspect of Employment Law talk to Slade Legal today.