In more detail
Facts
Ms. Webb was dismissed by London Underground for posting offensive comments about George Floyd and the Black Lives Matter movement on her private Facebook page. Her Facebook page listed London Underground as her employer, and many of her Facebook 'friends' were London Underground staff. The posts she made were captioned and circulated more widely on Twitter - colleagues complained about her posts, and they also came to the attention of the Commissioner for Transport for London.
Ms. Webb brought claims for unfair dismissal, race discrimination and unlawful deductions from wages. The tribunal found that the decision to dismiss her was substantively fair but that it was unfair on the basis of procedural flaws by London Underground, in particular a rather cursory appeal process. The tribunal significantly reduced the compensation awarded (a 75% reduction) due to Ms. Webb's conduct and contributory fault. Ms. Webb was also successful in her unlawful deductions claim in relation to holiday pay, but her race discrimination claim failed.
Right to Privacy and Freedom of Expression
What is perhaps more interesting is that Ms. Webb argued that (a) her dismissal and London Underground's conduct breached her right to private life and correspondence under Article 8 of the European Convention on Human Rights (ECHR), and (b) it also breached her right to freedom of expression under Article 10 ECHR.
London Underground disputed the application of Article 8 ECHR, relying on another first instance decision with similar facts (Crisp v Apple Retail Ltd). In Crisp, the tribunal concluded that the employee did not have a reasonable expectation of privacy in relation to Facebook posts. The employee's settings were restricted so that his posts could only be seen by his 'Friends', but he was aware that posts could be circulated more widely. The tribunal in Webb wasn't directed to any other authority on this point, and we're not aware of any appellate authority on this issue.
The question the tribunal posed itself was whether it was reasonable for an employer to rely on the content of private Facebook posts for disciplinary purposes, in light of the Article 8 ECHR right to private life. The tribunal agreed with Crisp that it was. Although it was a private Facebook page, the tribunal attributed weight to the fact that London Underground's social media policy explicitly warned that private posts were at risk of wider circulation and that disciplinary action could result if posts were inconsistent with the social media policy. The tribunal found it significant that in practice Ms Webb regularly re-posted content, interacted with people who were not 'Friends', and was aware of (and welcomed) the fact that her 'friends' routinely re-posted her content.
In the circumstances, the tribunal concluded that Ms. Webb could have no reasonable expectation of privacy and that Article 8 ECHR was not engaged in the case. This is somewhat at odds with Article 29 Working Party Opinion 2/2017 on data processing at work (the working party was the precursor to the European Data Protection Board, and when the opinion was published, the UK Information Commissioner's Office was part of it), which clearly identifies the limitations to the lawfulness of an employer accessing an employee's publicly available social media profile.
The tribunal and the parties agreed that Article 10 ECHR was engaged in the case. The tribunal confirmed that it places great value on the right to freedom of speech (expression), and was cautious about making any finding that might be perceived as infringing such a right. The tribunal directed itself to whether London Underground's conduct was justified on the two grounds set out in Article 10(2) ECHR, which are the protection of its reputation, and the protection of the rights of other employees (e.g., not to be offended or upset by Ms. Webb's posts). The tribunal found that both grounds applied in this case, and that London Underground's conduct was a justifiable restriction on Ms. Webb's right to freedom of expression.
Comment
While the decision is not binding on other tribunals, this is another helpful first instance decision on the ability for employers to rely on Facebook posts in disciplinary proceedings. This is still an emerging area, but our impression is that the tribunal is likely to take a different approach to content-sharing apps (such as Facebook and Twitter) over private messaging apps (such as WhatsApp or Telegram). It is likely to be easier for employees to demonstrate a reasonable expectation of privacy over the latter. The case emphasises the importance of having well-drafted internal policies that set expectations clearly in relation to social media use and potential disciplinary sanction.
This case does not give employers free rein over Facebook posts, and each case will be specific to its facts. However, there are steps that employers can take to increase the prospects of being able to rely legitimately on private Facebook posts in disciplinary proceedings:
- Ensure that your social media policies state clearly that employees should not have an expectation of privacy over Facebook or other content-sharing platforms, and highlight the risks of posts being subject to wider circulation or access.
- Make it clear in your disciplinary and social media policies that disciplinary action may result from inappropriate conduct on social media.
- Consider in each potential disciplinary case the platform the evidence or content is coming from, how it came into your possession and what the individual's presence is on social media. Be more cautious with content from private messaging apps, or where evidence is obtained covertly.
- Ensure that you have considered broader data privacy issues when conducting employee investigations, including completing a legitimate interests assessment or data protection impact assessment prior to commencing an investigation.
For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie.
