Firms cannot fire over Facebook use if policy is unclear

Companies have no power to dismiss employees for browsing the likes of Facebook or Twitter at work unless they have a comprehensive social media policy in place which they have clearly communicated to staff, a human resources expert has warned.

Catherine Corcoran, a consulting partner at Baker Tilly Ryan Glennon said the use of Facebook and other social media sites during working hours had always been an ambiguous area. However, she said a recent ruling by an Employment Appeals Tribunal had removed any confusion.

In that case, the tribunal awarded €7,000 to a woman after it judged she was unfairly dismissed. The managing director told the tribunal he and the office manager had verbally warned the woman on a number of occasions about her non work-related internet usage. In January 2012, he saw her on a social media site and called her to his office and dismissed her. He believed her actions amounted to a waste of the firm’s time and resources and constituted gross misconduct.

A part of the tribunal’s ruling stated: “It is also noted that the claimant was not provided with a contract of employment, payslips or an internet/social media policy during the tenure of her employment.”

Ms Corcoran said misconduct was one of the grounds that warranted an employee’s dismissal under the Unfair Dismissals Act, 1977. She said the ultimate question though, was whether the use of Facebook at work constituted misconduct.

“It would appear from this case that the usage of Facebook whilst at work does not amount to misconduct if the company do not have a social media policy in place,” she said.

“From this decision, it is clear that all companies should have a social media policy that specifically addresses the use of Facebook and Twitter in detail. This policy should be communicated to all staff on a regular basis.”

“The company’s confidentiality agreement could specify that employees should not speak about work-related matters on social media sites,” she said.

“The policy should cover any grey areas or avoid any confusion. The policy should clearly highlight the consequences of accessing Facebook and other social media sites. It is very difficult for employers to continuously monitor the usage of Facebook during working hours. Employers could implement firewalls to prevent social media sites being accessed at work. However, implementing firewalls can be expensive.”

In relation to what an employee posts online, Ms Corcoran pointed to a case in Britain, Smith v Trafford Housing Trust, in which a man was demoted for posting his opposition to gay marriage on Facebook.

He lost his managerial position and had his salary cut and was given a final written warning by his employer. While the comments were not visible to the general public and were posted outside his working hours, the employer said he had broken its code of conduct by expressing religious or political views which might upset co-workers. However, a court found the comments were not work-related and the company’s reputation was not affected by them.

“This case shows that companies strive to protect their reputation,” said Ms Corcoran.