Can Employers Rely on Private Facebook Posts in a Disciplinary Process?

The Employment Tribunal considered whether an employee had a reasonable expectation of privacy over private Facebook posts in Webb v London Underground.

Facts

Webb was dismissed by London Underground for posting offensive comments on her personal Facebook page about George Floyd and the Black Lives Matter movement. Although her page was set to private, meaning only her Facebook ‘friends’ could see her posts, Webb had London Underground listed as her employer and was friends with a number of her co-workers on Facebook. A number of colleagues made complaints about her posts, the posts in question were copied and reposted to Twitter and the Commissioner for Transport for London also became aware of the posts.

Webb brought a claim for unfair dismissal and argued that the dismissal breached her right to private life under the European Convention of Human rights (ECHR) and also her right to freedom of expression. The Tribunal decided that it was reasonable for an employer to rely on private Facebook posts for disciplinary purposes. London Underground’s social media policy explicitly warned that personal posts on social media could be circulated more widely and that disciplinary action could result from such posts. Despite her Facebook page being private, the Tribunal also considered that Webb frequently re-posted content and interacted with people on Facebook who were not ‘Friends’ on the platform, her ‘Friends’ also routinely re-posted her content so she could not have any reasonable prospect of privacy.

While the Tribunal was cautious about making any finding which would infringe the right to freedom of speech, they considered that London Underground was justified in dismissing Webb to protect its reputation and to protect the rights of other employees (the two justifications for restriction of freedom of expression set out in the ECHR).

Overall, the Tribunal found that the dismissal was unfair due to procedural issues, however they determined that the dismissal was substantively fair. Given Webb’s conduct and her contribution to her own dismissal, her award was reduced by 75%.

Comment

 The decision in Webb v London Underground is the second first instance decision which has reached the conclusion that employers can rely on Facebook posts in disciplinary proceedings. This question hasn’t been posed to a higher court yet so the decisions aren’t binding, however it is a good indication of how similar cases are likely to be treated by a Tribunal.

It is important to note that each case will be fact specific. If employers wish to rely on private social media posts there are a few steps they can take. An important factor in Webb was that London Underground’s social media policy warned that posts could be circulated and could be used in disciplinary proceedings. It would be helpful for employers to replicate this in their own policies so employees are on notice that any social media posts can lead to disciplinary action, whether or not they are intended to be public.

However, it is important that employers consider the context as a whole, rather than just the post in question when considering disciplinary action. The employee’s social media use and presence generally will be relevant, as will the extent to which their social media links them to the business  and broader data privacy issues.

For assistance with disciplinary proceedings or for help with policy updates, please speak to a member of the employment team.