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Facebook related claims update – balancing freedom of speech with rights to protection against discrimination

Social Media Apps (123ref)SUMMARY: Recently there have been two claims involving postings on Facebook, one in the Employment Appeal Tribunal and one in the High Court.

Social media is playing an increasing part in society and naturally this impacts on employment relationships.  Two recent cases involving the social media site Facebook have highlighted some of the potential issues that can arise from employees’ use of Facebook.  The first case (Novak v Phones 4U Ltd), heard by the Employment Appeal Tribunal, considers discrimination via Facebook and the second (Smith v Trafford Housing Trust), heard in the High Court, considers issues of an employee’s freedom of speech.

Novak v Phones 4 U Ltd – discrimination

Background

Although this case is about possible discrimination against an employee, it is important to note that this decision was not about whether the messages constituted discrimination or not, but whether the employee was in time to bring a claim and whether he had a good arguable claim that a Tribunal could hear in due course.

The Claimant employee, Mr N, was American and had a disability.  He fell down the stairs at work and his colleagues subsequently made fun of this incident on Facebook.

The Claimant’s colleagues had made postings on Facebook (on the open public network) between 31 March to 21 May 2010 and between 26 and 28 July 2010.  A number of people agreed with the postings by registering their thumbs-up during the first period of time.  The Claimant had 3 months to bring a claim from the date of the allegedly discriminatory act.  If the postings were a continuous act between 31 March and 28 July 2010, the Claimant’s race and disability discrimination claims (submitted on 9 September 2010) would be in time.  However, if they were not a continuous act, his claims would be out of time in relation to the postings between 31 March and 21 May 2010.

Decision

The Employment Tribunal judge held that the postings between 31 March and 21 May 2010 were separate from the postings between 28 July 2010 and therefore the Claimant’s claim in relation to the first set of postings was out of time.

The Employment Appeal Tribunal overturned this decision and held that the postings could constitute a continuous act from 31 March to 28 July 2010 and so the claim in relation to both sets of postings was in time.  Two employees had been involved in both sets of postings and they were in relation to the same subject matter (the Claimant’s fall down the stairs).  The total time span of the postings was 17 weeks and there was a discontinuous period for 7 weeks.

The Employment Appeal Tribunal did not make a decision on the issue of whether postings continuing to appear on Facebook (without further comment but prior to removal) amounted to a continuing act.

Smith v Trafford Housing Trust – comments on gay marriage

Background

An employee made negative comments on gay church marriage on Facebook.  His Facebook wall was open for “friends of friends” to read. As a result, he was demoted and told that his pay would be reduced over a period of time.  He continued to work for his employer (the Trafford Housing Trust) but claimed that his demotion was a breach of contract.

This case was not about whether the employee’s demotion following his comments on Facebook was fair, as he did not bring an unfair dismissal claim (he claimed this was because he could not raise the funds to do so within the statutory time limit).  His claim was for breach of contract.

Decision

The High Court was careful to consider the employee’s comment in the context in which it was made.  It noted that the employee had made the comment in between entries about sport, food, motorcycles and cars.  It also considered the BBC news article which prompted his comments.  The High Court held that no reasonable reader could conclude that the employee’s postings were made on the employer’s behalf and also emphasised the difference between a targeted email and a posting on the Facebook wall.

In relation to freedom of speech, the High Court commented that the frank but lawful expression of religious or political views may cause a degree of upset, and even offence, to those with deeply held contrary views, but this is a necessary price to pay for freedom of speech.

The High Court held that the Housing Trust had wrongfully dismissed the employee and breached his contract by demoting him.  However, as he would only have been entitled to his notice pay on dismissal, he was only entitled to the difference between what his 12 week notice pay would have been and what he was actually paid.  This amounted to just £98 in this case.

What does this mean for employers?

We would always advise having in place a social media policy so that employees understand their obligations in relation to interacting with both colleagues and members of the public on social media sites such as Facebook.  It should also be made clear to employees that breaches of this policy could result in their dismissal for (gross) misconduct.

If an incident occurs involving social media activity a full investigation should be carried out, as with any other potential misconduct.  Employers should consider the context in which postings have been made.  The right to make such a request should be reserved in a policy.

Employees should also be told to remove discriminatory posts immediately, so as to avoid problems of others commenting on them and to avoid arguments by other employees that discrimination continued for the period of time the post remained on the social media site.

Employers should bear in mind that the financial consequences for the employer might have been significantly greater if the employee in the second case had brought a claim in the employment tribunal against his employer.  More likely than not his dismissal would have been unfair.

Hazel Robbins, Solicitor.

Contact Information

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice. 

Updated: by FG Solicitors
Call us on:  0808 172 93 22

FACEBOOK RELATED CLAIMS UPDATE € BALANCING FREEDOM OF SPEECH WITH RIGHTS TO PROTECTION AGAINST DISCRIMINATION

Social Media Apps (123ref)SUMMARY: Recently there have been two claims involving postings on Facebook, one in the Employment Appeal Tribunal and one in the High Court.

Social media is playing an increasing part in society and naturally this impacts on employment relationships.  Two recent cases involving the social media site Facebook have highlighted some of the potential issues that can arise from employees’ use of Facebook.  The first case (Novak v Phones 4U Ltd), heard by the Employment Appeal Tribunal, considers discrimination via Facebook and the second (Smith v Trafford Housing Trust), heard in the High Court, considers issues of an employee’s freedom of speech.

Novak v Phones 4 U Ltd – discrimination

Background

Although this case is about possible discrimination against an employee, it is important to note that this decision was not about whether the messages constituted discrimination or not, but whether the employee was in time to bring a claim and whether he had a good arguable claim that a Tribunal could hear in due course.

The Claimant employee, Mr N, was American and had a disability.  He fell down the stairs at work and his colleagues subsequently made fun of this incident on Facebook.

The Claimant’s colleagues had made postings on Facebook (on the open public network) between 31 March to 21 May 2010 and between 26 and 28 July 2010.  A number of people agreed with the postings by registering their thumbs-up during the first period of time.  The Claimant had 3 months to bring a claim from the date of the allegedly discriminatory act.  If the postings were a continuous act between 31 March and 28 July 2010, the Claimant’s race and disability discrimination claims (submitted on 9 September 2010) would be in time.  However, if they were not a continuous act, his claims would be out of time in relation to the postings between 31 March and 21 May 2010.

Decision

The Employment Tribunal judge held that the postings between 31 March and 21 May 2010 were separate from the postings between 28 July 2010 and therefore the Claimant’s claim in relation to the first set of postings was out of time.

The Employment Appeal Tribunal overturned this decision and held that the postings could constitute a continuous act from 31 March to 28 July 2010 and so the claim in relation to both sets of postings was in time.  Two employees had been involved in both sets of postings and they were in relation to the same subject matter (the Claimant’s fall down the stairs).  The total time span of the postings was 17 weeks and there was a discontinuous period for 7 weeks.

The Employment Appeal Tribunal did not make a decision on the issue of whether postings continuing to appear on Facebook (without further comment but prior to removal) amounted to a continuing act.

Smith v Trafford Housing Trust – comments on gay marriage

Background

An employee made negative comments on gay church marriage on Facebook.  His Facebook wall was open for “friends of friends” to read. As a result, he was demoted and told that his pay would be reduced over a period of time.  He continued to work for his employer (the Trafford Housing Trust) but claimed that his demotion was a breach of contract.

This case was not about whether the employee’s demotion following his comments on Facebook was fair, as he did not bring an unfair dismissal claim (he claimed this was because he could not raise the funds to do so within the statutory time limit).  His claim was for breach of contract.

Decision

The High Court was careful to consider the employee’s comment in the context in which it was made.  It noted that the employee had made the comment in between entries about sport, food, motorcycles and cars.  It also considered the BBC news article which prompted his comments.  The High Court held that no reasonable reader could conclude that the employee’s postings were made on the employer’s behalf and also emphasised the difference between a targeted email and a posting on the Facebook wall.

In relation to freedom of speech, the High Court commented that the frank but lawful expression of religious or political views may cause a degree of upset, and even offence, to those with deeply held contrary views, but this is a necessary price to pay for freedom of speech.

The High Court held that the Housing Trust had wrongfully dismissed the employee and breached his contract by demoting him.  However, as he would only have been entitled to his notice pay on dismissal, he was only entitled to the difference between what his 12 week notice pay would have been and what he was actually paid.  This amounted to just £98 in this case.

What does this mean for employers?

We would always advise having in place a social media policy so that employees understand their obligations in relation to interacting with both colleagues and members of the public on social media sites such as Facebook.  It should also be made clear to employees that breaches of this policy could result in their dismissal for (gross) misconduct.

If an incident occurs involving social media activity a full investigation should be carried out, as with any other potential misconduct.  Employers should consider the context in which postings have been made.  The right to make such a request should be reserved in a policy.

Employees should also be told to remove discriminatory posts immediately, so as to avoid problems of others commenting on them and to avoid arguments by other employees that discrimination continued for the period of time the post remained on the social media site.

Employers should bear in mind that the financial consequences for the employer might have been significantly greater if the employee in the second case had brought a claim in the employment tribunal against his employer.  More likely than not his dismissal would have been unfair.

Hazel Robbins, Solicitor.

Contact Information

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.