The Risks of Social Media for your Job Security

Can you really be fired for a “LIKE”?

Well, looking at a recent case which came before the Belgian courts, the answer is – YES.

In this case [1], an employee of a social organisation agreed with his employer that he would not publish any content on his social media accounts which would create difficulties for his employer. The employee undertook this obligation in writing.

Despite this undertaking, the employee nonetheless clicked “Like” in respect of some damaging and controversial content. The Court of Appeal in Belgium upheld the employee’s dismissal for serious fault.

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The Law

Under Belgian Employment Law, there is “serious fault” if an action is such that it renders the professional collaboration between an employee and employer impossible, and with immediate and final effect.

The Belgian Court’s Position

The Court reviewed the likes, which were anti-Semitic in nature, and considered that the employee had appreciated the publications by liking them, whether this was as a bad-taste joke or otherwise.

As part of its decision, the Court referred to the written agreement signed by the employee. The written agreement referred to “publications” on his social media accounts. The Court considered that whilst a “LIKE” does not mean that the publication is automatically posted on the employee’s own “wall”, when the employee clicked “Like” in this instance, it was immediately visible via his Facebook network, which was public.

Therefore, once the employee had clicked “Like”, this meant that his views were shared on a public basis. It was clear that these views were not shared or tolerated by the employee’s management or hierarchy. The Court considered that the fact the employee had shared such posts via his “Like” had indeed conferred a negative image on his employer.

On this basis, the Court held that by liking a post which resulted in public diffusion within his network, the employee had indeed breached his written obligation.

Freedom of Expression?

The Belgian Court did nonetheless consider that an employee has the right to freely express himself or herself. However, the Court stated that this fundamental freedom does not extend to instance when expressing oneself would lead to seriously harming the image of one’s employer.

In this case, the employee’s conduct was even more serious, since his employer operated in a social wellbeing context, and the publication of anti-Semitic remarks would have a negative impact on its activities and on its managers.

In addition to this, the Court noted that the employee had already been warned about clicking “Like” in respect of damaging publications, and had even promised his employer that he would not do so again.

For these reasons, the Court considered that the dismissal for serious fault was justified.

Compliance – Tips & Tricks

This case shows us that there are several key learning points for employers and employees alike.

It is worth noting that whilst the case was heard before a Belgian Court, these points can be of useful practical application whether you are based in Belgium or elsewhere (though it is always worth seeking jurisdiction specific advice).

For Employees:

Ensure that you understand the scope of documents or undertakings that you sign in a work context.
Keep informed about any social media, privacy, Internet or IT policies in force in your workplace.
Be prudent as to your online presence, not only for your employer’s reputation but also for your own.
Consider rendering your social media profiles “personal”, so that they cannot be accessed by the public at large. This means that your likes, posts or shares are limited to individuals you have accepted into your private network.
Be wary of publishing your employer or employment history on pages which are solely for personal use. Consider the type of social media you are using – for example, LinkedIn or Shapr are generally used for professional purposes, whereas Facebook is often more for private use. Act accordingly!
Consider creating professional and personal profiles – perhaps using a familiar or nickname for private profiles, and add “pro” to any public accounts used for work purposes.

For Employers:

Make sure that you have robust policies and procedures in place relating to the use of social media, the internet and IT by employees inside and outside of the work / professional context and that these are clearly communicated to employees.
Train HR and Marketing staff as well as managers on the risks related to social media and brand reputation. Ensure that this training is fed through to staff at all levels.
Consider having your employees sign clear and transparent undertakings regarding use of social media and not bringing the company into disrepute. In this case, it is likely that the judge would have had a different opinion had the employee not signed a written undertaking.
Ensure that you monitor your social media presence so that you are able to undertake damage limitation immediately in the event of any unfavourable posts, or in the event your company social media accounts have been hacked.
When disciplining employees for adverse conduct on social networks, ensure that you have a clear disciplinary process in place, which may start with an informal warning – immediate dismissal should not usually be your first port of call. If in doubt – seek specialist legal advice.

Article by the Team @ Gerrish Legal, August 2018

[1] See the decision of the Cour de Travail de Liège, 3e ch. – Decision of 24th March 2017.