The blurring of private and public
Employee comments on social networking sites are now a common feature in tribunal disputes with a blurry line between what may be considered private and what may be considered public.
In Smith v Trafford Housing Trust, the High Court held that even where the poster's employer is identified on their home page, views expressed on Facebook, do not necessarily bring the matter within the employer's disciplinary remit. Simply because someone has a number of Facebook friends who are work colleagues, a work-related context will not be presumed.
In Smith the High Court found the employer to have been in breach of contract for demoting a Christian employee who posted what the court considered to be temperate comments in opposition to gay marriage. While it was acknowledged that the comments had caused offence to one colleague with strongly held opposing views, this was seen to be a necessary price for freedom of speech.
However, this does not mean Facebook postings are always considered private or not capable of amounting to harassment. As ever, context is everything. In Teggart v TeleTech UK the Northern Ireland tribunal, held that the dismissal of an employee for making vulgar comments about the promiscuity of a female colleague on his Facebook page was fair. Although the comments did not bring the employer's reputation into serious disrepute, the harassment of a colleague was sufficiently serious on its own to justify the dismissal. Furthermore, although his Facebook page was only open to 'friends', it is not private as comments can be copied and passed on to others.
How long does a discriminatory Facebook comment last?
In Novak v Phones 4U two sets of Facebook postings made seven weeks apart were linked together as a continuing act of discrimination where the second set clearly referred to the same subject matter. The case also raised an alternative question, is a discriminatory comment posted on the date it is made, or is it a continuing act until such time as the comment is deleted? This question remains unanswered but highlights the differences between a comment said at a social gathering and comments posted on social networking sites which leave a record.