Social media. Oh my. We all know the usual story of an employee getting ‘caught out’ by a social media post. But, in reality, social media is a complicated beast and never quite as straightforward as it appears. Can an employer normally rely on social media posts? Probably. Can it always rely on incriminating social media posts? No!
Before we get into it fully, it’s important to consider that even defining ‘social media’ is tricky nowadays. Raise your hands if you think you’re pretty au faux with social media websites? Good, good. So you’ve heard of all of the following: Facebook, WhatsApp, Tumblr, LINE, Telegram, Foursquare and Snapfish. I thought not… (Bonus point if you actually did!)
Now, we all know the standard tale. An employee posts something anti-employer on their social media or posts something that proves dishonest conduct and the employer then pulls out their social media policy, invites the employee to a Disciplinary hearing and a formal sanction (up to and including dismissal) is given. But, in reality, a lot depends on how that information comes to light.
Let’s explore this now by considering two Snoopy-themed examples.
The first example sees Charlie Brown posting multiple pictures of him playing baseball with Snoopy on Facebook. He does this at 11am on the same day he rings work and claims sickness absence due to ‘extreme flu’. Unfortunately for him, his Facebook profile visibility is set to ‘public’. This means that his manager, Lucy van Pelt, can simply type his name into Facebook and, voila, multiple pictures of Charlie Brown losing at baseball to Snoopy. Because there is no reasonable expectation of privacy (otherwise, Charlie Brown would have set his profile visibility to ‘private’), Lucy is fine to printscreen the images and investigate and consider a formal disciplinary process. Charlie Brown’s luck, as usual, is against him…
However, our second example concerns Snoopy himself. (Let’s suspend reality here and ignore the fact that he is a cartoon dog!) As per usual, Snoopy wishes to spend time writing a novel on his famous typewriter. He wakes up one morning full of creative verve and, due to this, rings work to say that he is ill with a ‘cold’. In reality, he is sitting on top of his doghouse writing the words “It was a dark and stormy night…” and daydreaming another Red Baron scenario. Early in the afternoon, Snoopy posts a simple picture of his typewriter on Facebook. His Facebook profile is set to ‘private’ and is airtight to non-Facebook friends.
After unsuccessfully attempting to view his profile, Lucy van Pelt (Snoopy’s Manager) impersonates one of Snoopy’s work friends, Peppermint Patty, on Facebook. Namely, Lucy (knowing that Peppermint Patty doesn’t have a Facebook profile) creates a profile in her name and sends a friend request to Snoopy. Snoopy sees this and accepts the request. On doing so, Lucy sees the image of the typewriter and suspects that Snoopy isn’t really ill.
However, Lucy can’t rely on this evidence without substantial risk. Firstly, she herself is guilty of misrepresentation and acting in bad faith towards an employee. This is completely unprofessional and, ironically, most likely a breach of the social media policy of the employer. Secondly, she has breached Snoopy’s human right to privacy of private life because he had a reasonable expectation of privacy due to the ‘private’ nature of his page and because Lucy’s actions in impersonating a friendly colleague went beyond the reasonable act of an employer. If the employer ending up relying on this evidence, any sanction would be unlawful and legally unfair and would, theoretically, enable Snoopy to resign in protest and claim Constructive Unfair Dismissal (or claim Unfair Dismissal if dismissed).
So, there we have two similar scenarios but only one situation in which the employer can use the evidence obtained against the employee. Put simply, an employer must behave appropriately (i.e. in good faith) when searching social media and can’t resort to impersonating or misleading employees in order to obtain evidence.
However, it should be noted that, most often, social media evidence is actually provided to management by one of the employee’s colleagues completely voluntarily. In this case, if obtained reasonably (i.e. a screenshot by a Facebook friend or Twitter follower), this can be relied upon.
So, in the words of Charlie Brown: “Is a baseball game really this important?”