Andrew Baker is a LLB/BCL candidate at McGill University Faculty of Law.
A recent decision of a UK Labour Tribunal has upheld the dismissal of an employee for comments made on her Facebook page. The case demonstrates the increasing use of social media in the employer/employee relationship and the legal effects on speech.
The employee, K C Preece, was a shift manager at the Ferry Boat Pub where she was subjected to repeated verbal abuse by a group of customers. Miss Preece countered with an offensive response on her Facebook page in which she identified her abusers by name. A customer saw the comment and responded with a complaint to the employer, JD Wetherspoons plc.
JD Wetherspoons’ employment policy contained an internet provision prohibiting employees from posting comments that would lower the reputation of its business. The tribunal’s decision upheld the dismissal on the basis of this specifically-worded policy. Miss Preece admitted to contravening the policy, but responded by arguing that she intended her comments to be private as she believed they were visible to only a small number of friends.
The public versus private nature of speech in social media has become an increasingly recurring theme. The British Columbia NDP recently raised eyebrows when it demanded potential candidates surrender their Facebook login and passwords to prevent any unwanted surprises during the campaign. The measure was in response to BC provincial NDP candidate Ray Lam, who resigned from the 2009 electoral campaign when racy photos surfaced on his Facebook page. Party member Nicholas Simons argued that such a policy not only violates the privacy of the individual, but also anyone who has communicated with that account under the assumption that only the account-holder would view the content.
Privacy settings have been a major issue for Facebook users. The problem is exacerbated as communication traditionally reserved for more formal mediums is increasingly finding its way into electronic media. This is especially prevalent in the workplace: a Kelowna BC woman was recently fired via Facebook and in 2006 retailer, RadioShack, issued hundreds of layoffs to employees via e-mail. The potential ease of third-party access to sensitive information calls into question if there can ever be a reasonable expectation to privacy for comments and personal messages made via Facebook.
In Miss Preece’s case, the tribunal’s decision was guided by the obligation to abide by the employer’s internet policy, but often is the case where such guidelines do not exist. A recent labour tribunal case from British Columbia also upheld the firings of two car dealership employees, JT and AP, who had posted inflammatory Facebook comments. The case was complicated by numerous factors:
- The respondent employer was able to view the comments by being granted third-party access by a former employee who was mutual Facebook friends with JT.
- The inflammatory comments pertained to the employees’ attempt to unionize raising the issue of protected speech.
- The employer monitored the complainants’ Facebook pages for over a month in this manner and compiled all comments (a process that began on the day the application for unionization was filed; the employer was aware the complainants were in favour of unionization).
- JT was issued a warning in the interim for inappropriate behaviour, but the dealership did not mention the Facebook comments at that time.
The dismissals were upheld on the grounds that had an anti-union animus existed the employer would have acted sooner, thereby justifying the dealership’s explanation that the dismissal was solely disciplinary. The tribunal noted that the content of the postings were highly offensive and increasingly derogatory and that the employers’ delay in dismissing JT and AP could be ascribed to due diligence by ensuring sufficient cause for dismissal.
Numerous similar wrongful dismissal cases exist (see here, here and here), but the UK and BC labour tribunal decisions call into question how social media has changed the dynamic between public and private speech and whether existing juridical guidelines founded on traditional forms of speech still apply novel forms of communication.