Eschewing the usual idea of taking a career break to find oneself, re-charge one’s batteries or complete that property project, one client’s employee was both bold enough to seek the time off to a spot of podium dancing in Ibiza, and lucky enough that it was still granted. However, the attractions of gyrating about in a nightclub in a noise like an artillery barrage were such that she chose not to return, or (less forgivably) to tell her employer that she was not doing so. What could the employer do?
This was a query recently raised with us. The answer? Look on facebook, and there she was, still hard at it with no indication that she would be back in the near future. And then, having marvelled again at the things people do for fun, dismiss her. We all know the necessity to have policies in place to cover facebook usage at work and to protect against bullying and harassment of employees on such sites, but more recently facebook has increasingly been used to discipline employees, simply because it provides often incontrovertible evidence of misconduct, usually at the employee’s own hand.
Employers seem to be reluctant to use evidence found on social networking sites, such as facebook, to dismiss or discipline employees. The concern appears to be that it involves crossing into someone's private life, and to a degree that is true. However, it is only into those parts of that private life which the employee has seen fit to make (effectively) public by putting them into the social media site. If you went to a party in person and an allegedly bed-ridden employee turned up, would you think twice about disciplinary action? No. So as soon as that same information hits the public domain by any other means, for example through some of those blurred and shouty photos people take at such events, then it is equally undeniable evidence of misconduct (or at the very least of the over-weaning stupidity of the employee in question).
This is not just a UK issue. Cases recently reported in the press include a Swiss employee dismissed for using facebook whilst on sick leave from her employer, despite her telling it that she was unable to use a computer and needed a darkened room to recover from migraines. Similarly, an employee of IBM Canada lost her insurance payments for the “long term depression” which prevented her from attending work, when photos on her facebook page showed her enjoying herself with late nights out and “fun in the sun”. And which regular fliers could forget the Virgin Airlines flight attendants recently dismissed for comments made on their facebook profiles about passengers being "chavs", the planes being full of cockroaches and the engines having to be replaced four times a year? However clear these may appear, remember that the employer must still respect the procedural formalities – without a chance to say his piece first the employee will have a cast-iron unfair dismissal claim even if what his facebook page suggests about his behaviour is all true.
Misconduct is misconduct. If it relates to the job then the knowledge of it can be relied upon more or less irrespective of how that knowledge is acquired. Quite aside from strengthening the employment gene pool by getting shot of employees too dense to realise that their “friends” may not in fact be their friends in the real world, the employer can be confident that no Employment Tribunal is going to pay much attention to a claim that although the conduct is as appears on facebook, dismissal for it is unfair because the employer only found out about it through a social media site.