Fired because of Facebook?

Hard as it may be for anyone under the age of 30 to believe, when I started work there was no such thing as social media. In fact, there was barely even email. I remember trying to send my first email, via a modem that kept dropping the connection. It took so long I ended up phoning the person who sent it and we chatted while I waited for the message to come through.

How times have changed.  These days I can know instantly what that friend’s had for lunch, where she’s going tonight, what she did at the weekend and what she thinks about her boss without having to go through the tiresome process of ringing her.  Actually, scrap that last bit, because if she’s got any sense she won’t be putting her thoughts about her job on any of her social media profiles.

It seems that sharing your thoughts about your working life on your Facebook or Linked In profile or your Twitter account can be bad for your employment.  Very bad.  In November last year Apple dismissed employee Samuel Crisp for criticising his iPhone and job in a string of Facebook posts.  In November last year an employment tribunal upheld the sacking as ‘harsh but justified’.

Apple, I suspect unlike many employers, has a clear social media policy banning critical remarks because image is so important to the brand and, presumably, because a good number of those on social networking sites probably use their products.   You could argue, therefore, that Mr Crisp should have known he was heading into dangerous waters with posts like this one of a misfiring app: ‘F***ed up my time zone for the third time in a week and woke me up at 3am? JOY!!’

On the other hand, sacking someone for having a bit of a moan on Facebook when they have worked at your company for 13 years with barely a day off sick seems a bit of an overreaction.  But that’s what happened to David Rowat, a 56-year-old stock room worker at Argos, who suffers from cancer.  On returning to work after two weeks off he wrote ‘had a great day back at work after my hols who am I kidding!!’ followed by ‘back to the shambles that is work’.  This was posted to all 89 of his friends on Facebook.  He didn’t even mention the company’s name.

I’m no employment lawyer, but I would seriously doubt that Mr Rowat’s really rather minor grumblings brought his employer into disrepute and so constituted gross misconduct.  If anything, I’d argue Argos probably brought itself into disrepute by unleashing something of a PR disaster.

Nonetheless, there are employment experts who suggest even posting something as bland and unexciting as ‘I had a bad day at work’ gives bosses the legal right to sack someone for ‘breaking the relationship of trust and confidence between the employer and the employee’.  Which, as far as I’m concerned, rather raises the question of whether employees can claim their employer has breached that same trust by snooping on their Facebook page.

I’m guessing the answer is no, since social networking sites are not wholly, if at all, private and so you should always expect anything you put on them to be public.  In fact, according to research by Career Builder, half of employers have rejected a potential worker after finding incriminating material on their Facebook page.

I suppose it’s a fair cop if you’ve been found out lying about your qualifications but being knocked back for posting that you wish your ‘desk was near the television to watch the cricket at work’ or for saying you have a ‘tramp-related hangover’ (whatever that is) seems to step a bit too far over the grey line between your work and private life.

The whole issue becomes even more complicated now that many companies are actually encouraging their staff to use social media for work-related networking and marketing.  Research by law firm DLA Piper revealed almost a third of firms have been forced to take action against employees because of information posted online about their organisation and more than a third said their business was at ‘risk’ because confidential information may leak out.

But that depends on what you call confidential.  Last year John Flexman, an HR executive with BG Group, a major gas exploration company based in Reading, claimed he was ‘forced out of his job’ after angering his bosses by putting his CV online and registering that he was interested in other ‘career opportunities’.   He was accused of ‘inappropriate use of social media’ and disclosing confidential information in his CV, although he claims this was publicly available.

Mr Flexman is bringing what is believed to be the first case in the country of constructive dismissal following a dispute about information posted on the professional networking site LinkedIn.  About half of the people using the site, which encourages members to share details about their skills and experience to help make useful business contacts, indicate they are interested in career opportunities on their profile.

And why wouldn’t you?  Employers are going to be hard pressed to find anyone that is honestly not interested in a career opportunity, and would you want them working for you anyway?  Are they going to start disciplining anyone who browses the job pages of the weekend papers?  At least he wasn’t nicking paper and envelopes to print off his CV and post it to recruiters, which is what we had to do in the past.

Many employers clearly don’t have a grip on social media, which is understandable because most of them are probably older than me.  I suspect the law is also struggling to work out where the boundary lies between the public and private online (witness the Twitter joke trial).

Even so, I’d have thought there is a fairly obvious difference between openly criticising your boss and having a general moan about a bad day at work.  More to the point, if your boss isn’t your Facebook friend he should stop snooping on your photos:  just because he can find out what you get up to in your private life doesn’t mean he should.

Posted in: Employment law

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