Posted on: Feb 20,2020
Social media posts are often spontaneous and thoughtless, but many people are dismissed because of what they post on platforms such as Twitter, Facebook or Instagram. A woman employed by a US government contractor lost her job because she was photographed extending her middle finger at the motorcade of President Trump when she was away from work, and posted the photo on her Facebook and Twitter page. An employee of a care home was dismissed for posting on Facebook a video and a photo of a music night, which she regularly organized for the residents, where one of them with Down’s syndrome was visible, and was tagged. An employee of the British Council was dismissed because she posted comments critical of the monarchy and ‘white privilege’ on Facebook under a photo of Prince George that was accompanied by an obscene remark (for which she was not responsible), which the tabloid press picked up and misreported. Is expression that is protected against state interference also protected in the employment context, against dismissal and other disciplinary action?
Dismissal for out of work conduct is not a new phenomenon. The case of Mr Pay, who ran a Bondage, Domination and Sadomasochism (BDSM) organisation and organised BDSM events in his private time, away from work, but was dismissed from his job as a probation officer, is a good example, as I have previously discussed here. Yet the use of social media has created new challenges for workers, employers and the courts. Employees can express themselves with great ease and speed in the public domain, in a way that can often be accessed by colleagues, customers, the general public, and the employer, while through their profile they can be linked to their workplace. Unlike conversations in the pub, a café or by the watercooler, comments on social media often leave a permanent record. The technology used is often new territory for courts and tribunals, as there is at times relatively limited understanding of how online platforms work.
In English law, to assess the lawfulness of a dismissal courts have to consider whether it is reasonable or unreasonable – a test provided for in the Employment Rights Act 1996. In this context, they regularly grant great discretion to employers, being particularly concerned about non-interference with managerial prerogative, that is the right of managers to decide how to run their businesses or organisations. The standard slogan used is that a dismissal may be ‘harsh but fair’. Yet some dismissals raise human rights issues, for example relating to the right to private life or the right to free speech. Human rights are stringent entitlements, both morally and legally, and the European Convention on Human Rights (ECHR) provides for a test of proportionality, not a test of reasonableness, when limitations are placed on them. The introduction of the Human Rights Act 1998 (the HRA), which incorporated the ECHR into domestic law, therefore brought a glimmer of hope. Labour lawyers argue that when a dismissal implicates human rights it should be scrutinised more rigorously.
It has often been argued that when assessing the lawfulness of a dismissal that interferes with human rights, a test of proportionality sets a higher threshold of protection than one based on reasonableness. However, the HRA has had a limited effect on the test employed by courts. This is for at least three reasons that are particularly pertinent in dismissals for social media activity. First, courts are reluctant to recognise that the right to private life under Article 8 of the ECHR has been interfered with (let alone violated) for activity that is on the internet, taking the view that the internet is public space and therefore not covered by privacy rights. Second, UK courts continue to view a light touch approach as suitable for dismissals or disciplinary action that engage Article 8. Third, when the right to freedom of expression under Article 10 is implicated, courts tend to view speech on social media as trivial speech, of lower value than other types of expression.
The approach of courts and tribunals to the right to private life as a right to act in spatial isolation is incompatible with the ECHR, as I have argued. The Strasbourg Court (ECtHR) has regularly ruled that activities in public space are covered by the right to private life, and typically places attention on the employee’s reasonable expectation of privacy, not on the question of where the activity took place. That said, the suitability of the reasonable expectation of privacy test for the employment context has been questioned by the ECtHR in Barbulescu v Romania. The employee used the employer’s Messenger account for personal communications, contrary to the company’s internal regulations that he had signed. The Grand Chamber found that the balancing test applied by domestic courts was inadequate for several reasons, such as the fact they did not determine whether Mr Barbulescu had received notice about the existence or extent of monitoring or the need for the monitoring measures. The Grand Chamber said:
It is open to question whether – and if so, to what extent – the employer’s restrictive regulations left the applicant with a reasonable expectation of privacy. Be that as it may, an employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary.
This passage is crucial. At a time when many employers think that the right way to deal with the use of social media by employees is by including terms in the contract of employment or other internal rulebooks setting severe restrictions to workers’ rights, Barbulescu places limits to the employer’s power. However, it is not clear how this passage fits with the reasonable expectation of privacy. Moreover, other recent case law on dismissal and privacy, including Ribalda v Spain that is pending before the Grand Chamber, suggests that the ECtHR is uncertain about the scope of private life at work. It is important to emphasise, though, that principle of Barbulescu sets a good standard.
When it comes to the right to free speech, we can accept that different types of speech warrant different degrees of protection. It is often said that political speech is particularly important for democracy, for instance, and therefore merits a high degree of protection. People often engage in political debates on social media, as exemplified by the case of Ms Gibbins, the British Council employee dismissed for her political comments. But more generally, even when speech on social media is on other issues that do not involve politics, its value should not be too easily dismissed. Social media platforms are important means of communication and community-building, and are important for people’s autonomy and identity. They help create and maintain connections, and provide a forum for people to express views and ideas, to be part of groups and associations that they value with others whose interests they share. Speech that is spontaneous and possibly trivial is not unworthy of protection.
That we have a right to something, of course, does not mean that we enjoy absolute protection when exercising it. Rights can come into conflict with other rights or other important values. Articles 8 and 10 of the ECHR recognise that rights may be restricted if there is a legitimate aim and in a manner that is proportionate to this aim. Bullying and harassment of other employees is a good example of speech that should not be protected. Disciplinary action for such activities aims to protect other workers and peaceful employment relations, which the employer has a duty to do. But comments on social media with which the employer or others disagree or which they find distasteful or disturbing may not be a legitimate reason for dismissal.
The ECtHR has repeatedly said that the right to freedom of expression may cover speech that offends, shocks or disturbs, and there is no reason to think that this principle should not apply in the workplace. The employer cannot police workers’ moral character, their political opinions or their preferences. The retention of someone’s job should not depend on the tabloid press and the effect of its (mis)reporting on employers’ reputation. At present, speech that is protected against state interference is not protected in the employment context against dismissal and other disciplinary action. This is disturbing.
Dismissal can be devastating for its effect on income, reputation, social status and social life, as the Strasbourg Court itself has recognised, and even on people’s health. Courts and tribunals are too ready to accept managerial prerogative on matters of disciplinary action. This is very troubling, particularly when we are faced with lawful conduct on social media, and given that UK law provides little protection for disciplinary action short of dismissal. It cannot be right that the employer should have the power to control a person’s life away from work and dismiss that employee on a whim for reasons that have no effect on workplace performance. Human rights law, particularly the right to private life and the right to free speech, gives us the tools to address this problem, but UK courts and tribunals need to revisit, first, their conceptualisation of these rights, and second, the test of fairness in dismissal.
About the author: Virginia Mantouvalou is Professor of Human Rights and Labour Law at UCL, Faculty of Laws, and Co-editor of the UK Labour Law Blog.
Sourced from – V Mantouvalou, ‘I Lost my Job Over a Facebook Post: Was that Fair?’, UK Labour Law Blog, 21st June 2018, available at https://wordpress.com/view/uklabourlawblog.com
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