Should employees have a “reasonable expectation of privacy” around their social media posts instead of fearing unfair dismissal?
An employee’s “reasonable expectation of privacy” is being given greater weighting than previously in tribunal decisions involving claims of unfair dismissal. This is the key finding of a recent study by Macquarie University’s Louise Thornthwaite of decisions involving misuse of social media by employees.
Law lags behind technology
A problem for employers is that social media technology is continuing to evolve and the law and tribunals keep having to play catch-up. Therefore the way cases are handled will also continue to evolve. A further problem is that cases involving social media tend to be decided largely on the individual circumstances of each one.
What do tribunals consider?
That being said, it was possible to draw some general conclusions from earlier decisions:
- Content posted on social media was regarded as being “in the public domain”, because it was permanent, transferrable, sharable and searchable. Employees who posted it needed to be aware of that and should have been aware of who could access it, eg the employer, co-workers.
- The content had to be relevant to work, eg identify the employer. Whether it was posted at work or outside work (eg on employee’s own Facebook page) did not matter.
- The content had to have the potential to damage the employer’s business, either reputationally or financially.
- Tribunals took into account whether the employer had issued a policy on social media use and whether the employee should have been aware of its contents.
All the above factors will continue to be relevant. However, the study found evidence that tribunals are increasingly balancing these factors against an employee’s reasonable expectation that his/her social media postings about work were intended to be private.
The study author Louise Thornthwaite drew a couple of analogies to illustrate that view:
1. If an employee closes the door of a room or goes out of likely earshot of others to hold a conversation, it is clear that he/she intends it to be “private”. But if he/she makes a phone call in a public area (eg on public transport) or when others are nearby, it is not private because it will probably be overheard.
2. When an employee complains about an employer while drinking with co-workers or friends at home or in a pub, it is not intended to be a “public” conversation. Employees have a right to complain to others about their job or employer if they wish. Social media sites like Facebook can be regarded as an “electronic pub”.
Therefore, it appears that the intention of the employee when making social media posts is receiving greater weighting, and merely “letting off steam” without deliberately intending to damage the employer is very unlikely to justify dismissal or other strong sanctions.
What is a reasonable expectation of privacy?
Thornthwaite said that the following factors influence what is a “reasonable expectation”:
- The employee’s actual expectation of privacy, such as in the door-closing example above
- Whether society in general regards the expectation as reasonable
- The integrity and dignity of the individual employee.
She added that tribunals are likely to consider the following factors:
- The nature of the “private” information
- The employee’s intentions – whether he/she wanted it to be public or private
- Methods used by the employer to gain access to it, eg surveillance, searches
- Where the employer gained access, eg inside or outside workplace
- Reasons why the employer sought access – evidence of “overpolicing” may harm its defence
- How the content was held or communicated, eg a personal diary or Facebook page
- Extent to which the content was already in the public domain
- Personal attributes of employee, eg age, occupation. There is some evidence that tribunals assume that older employees tend to be less tech-savvy and will accept excuses such as ignorance of privacy settings.
What does this means for employers?
- Have a clear policy on social media use/misuse by employees. It should set out what is work-related and not work-related content, and specify any monitoring of use you may undertake. You can also specify whether employees are allowed to list their place of work on social media, as this is a major factor in whether posts can be linked to the person's employer.
- Emphasise the importance of employees using appropriate privacy settings on social media, and the potential consequences if content reaches the wrong hands.
- Understand that employees are entitled to discuss and complain about you and your business “in private”. Only if the situation has potential to cause significant damage to the business, eg defamation, or is a clear breach of policy, should you consider taking action.
- Be aware that social media is an evolving area of the law. Keep up to date with developments and review your policy regularly.
- If you take action against an employee, eg dismissal, you must be able to prove that his/her conduct was intentional and damaging. Don’t assume social media content is “public” regardless of the circumstances, evaluate the situation carefully.
This article was written by Mike Toten and first published on hradvanceprofessional.com.au