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Privacy statement - Terms and conditions

freedom of speech in the workplace - your employees and social networks

12 September 2017

Voir cette page en Français

Every individual in Europe, including in the UK, has the right to freedom of expression i.e. the freedom to hold opinions and to receive and share opinions without the interference of public authorities. This right is set out in Article 10 of the European Convention on Human Rights. However, this is not an unlimited freedom and the right can be limited as is appropriate in a democratic society. For example, in order to protect the reputation or rights of others or to protect health and morals. Common areas where an employer may wish to restrict an employee’s right include an employee’s use of the internet and social media at work and where an employee’s behaviour outside of work threatens the employer’s reputation.

Monitoring your employees’ use of internet at work

The English courts have considered a number of cases in the past five years relating to this right. The cases suggest that an employer may be permitted to monitor their employees’ internet use inside the workplace or monitoring the personal emails sent by the employee when it is made from the employer’s business inbox, providing that this is done in a proportionate manner and that the employer has a clear internal policy on monitoring in force. The employer must clearly state to staff (both in the company policy and in their employment contract) that they are going to monitor them, how they are going to monitor them (always within the limits of the data protection legislation), the purpose of the monitoring, specifying the sanctions an employee may face if they fail to adhere to the policy.

Social media

In England, any employee using social media platforms such as Facebook, Twitter or LinkedIn would be sensible to think about what they are posting and whether it would have an impact on their employer. Again, notwithstanding the right to freedom of expression, recent cases confirm that an employer may fairly dismiss an employee if they have seriously breached their employer’s policy on social media if the employer is able to demonstrate that their posting has an impact on the employer’s reputation. Dismissals have been found to be fair where employees have made derogatory comments about customers or colleagues on their Facebook page because an employer has been able to demonstrate that their action, potentially contravening the right, is justified under Article 10 i.e. by establishing that either:

  1. their reputation was at risk
  2. that the dismissal was necessary to protect the morals or health of others, and
  3. to protect the rights of other employees.

These factors need to be considered carefully by employers throughout a disciplinary investigation.

Behaviours threatening the employer’s reputation

This justification requirement will be especially relevant in relation to the activities that an employee would have outside the workplace. For instance, a woman employed as a teacher in an English prison was found to be fairly dismissed after her employer found that she was performing as burlesque dancer in her spare time. She had auditioned on the X Factor show, mentioned her place of work and had engaged in innuendo about her employment with Simon Cowell. It was found that the employer had fairly dismissed her on the ground of the impact on its reputation working with young offenders. Any employer who intends to take formal action against an employee must carefully assess beforehand how public the behaviour has become and to be clear about its impact on their reputation as an employer.

Barbalescu v Romania

The approach above has been further approved in this recent judgment of the European Court of Human Rights. Although Barbalescu challenged his dismissal under Article 8 (the right to privacy) rather than Article 10, the Court confirmed the points outlined above (i.e. the importance of warning the employee of the extent and nature of access the employer would have, confirming the purpose of the monitoring and potential sanction). However, the Court went further, finding that employers should consider carefully the legitimacy of their reasons for access and considering whether less intrusive monitoring could achieve their aims. Importantly, all of the above will require steps to be taken by employers before monitoring can legitimately start.

If you require any further information, please do not hesitate to contact Dominique Tai on +44 (0)20 7337 1007 or at dominique.tai@brownejacobson.com or Alix Troënès-Smith at +44 (0)20 7871 8541 or alix.troenes-smith@brownejacobson.com. Or visit our French group page for more information.

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Alix Troenes

Alix Troënès-Smith

French Group Manager - French and English qualified lawyer

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