Social Media and Employment Law

Recently the England Cricket team has been rocked by issues of offensive social media posts coming to light.  Some of these posts we originally made almost a decade ago and some when the player concerned was under 18.  One of the players has been suspended pending an investigation, which has led to some debate around whether someone should be punished for something that they did many years ago.  The British Prime Minister, Boris Johnson, and Minister for Culture, Media and Sport, Oliver Dowden, have both criticised the player's suspension.

While this might be a niche example only of interest to followers of the England cricket team, it does raise several broader questions about the employment law consequences of social media posts that include discriminatory language. Should employers check the social media posts of potential employees?  If so, is there a cut-off point in terms of how far back through someone's social media an employer can look?  Does the age of the person when they originally posted the comment carry any weight?  Who has the ultimate responsibility for deciding if a post is offensive?  And how does all of this affect an employee's freedom of speech?

To get further insights into these questions, I spoke with a leading employment law specialist, Stefan Sagel from the highly-regarded Dutch law firm De Brauw Blackstone Westbroeck for his thoughts and legal analysis into the issues around Social Media and Employment Law.

Stefan stated that there had been a number of cases in the Netherlands of employees being dismissed on the basis of social media posts. The majority of these have involved people who were under contract to the company when they made the post.  However, as in has been the case with the England cricket team, there have been some examples where the courts have decided that even though a post was made before the individual started at the company, it has still led to a breach of trust and confidence.

In these examples of historic posts leading to a dismissal in the Netherlands, there is no statutory limit that the employee can use as mitigation - though the age of the employee when the post was made can be a relevant factor.  There have not been enough examples for a clear case law to emerge concerning this, but so far the judges in these cases have tended to take a practical approach and accepted that younger people are likely to make mistakes.

The key aspects of dismissal cases based on social media posts are the role or responsibilities of the employee and the nature of the post.  For this reason, several of the cases in the Netherlands have involved individuals who might be felt to be in positions of particular trust or people who might be regarded as role models, such as teachers.  In terms of the severity of offence caused by the post, this is judged by the courts.

Generally in the Netherlands, to fire an employee, the employer will have to go to court and ask for the court's permission before dismissing the employee.  Summary dismissals are therefore rare, though there have been some examples of employees being summarily dismissed on the basis of social media posts, but in all instances those have involved posts made during the employment, rather than historic posts.

Following the rise of social media, it is becoming increasingly common for employers to carry out online searches of potential employees as part of the recruitment process, though this is not normally something that they would require external legal assistance with.  Given the managerial power of employers in deciding who to employ, there have not yet been any cases in the Netherlands where a company has been sued for deciding not to hire someone based on social media posts.

A key part of this topic in the Netherlands has been the question of to what extent a company's values can overrule an employee's right to free speech.  Stefan Sagel, in his expert view of the employment sector, felt that for the most part, courts in the Netherlands were trying to avoid making judgements around this issue.  The courts have focused predominantly on whether the social media post had led to a break down in trust between the two parties, rather than the more complex issue of whether the employee had a right to express their opinion. 

One example Stefan gave to illustrate this was an employee who had published a book describing their current job in unflattering terms.  When the employer tried to dismiss this employee, the employee argued that they had a right to express their opinion.  The court did not offer any statement on whether the employee had the right to publish the criticisms but judged that the breach of trust between the two parties was too great and therefore the employee could be dismissed.

As a counter to this general trend, however, Stefan Sagel also offered the example of an employee of an NGO who posted comments criticising the protestors in Hong Kong.  In this instance, the court held that the employee was not permitted to make these political statements, particularly since the NGO had a strong human resources policy in place concerning social media posts.  Stefan underlined the importance in all employment litigation cases of having a clearly-worded policy in place to make disputes and claims easier to resolve and added that this was something de Brauw Blackstone Westbroeck had helped clients with when social media first started coming to prominence.

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