2. Isitreallypossible
toloseyourjob
duetoyour
conductonsocial
media?
Well, looking at a recent case which came
before the Belgian courts, the answer is – YES.
An employee 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
Liked some damaging and controversial
Facebook content.
A Court of Appeal in Belgium upheld the
employee’s dismissal for serious fault.
3. Whatdidthe
BelgianCourtsay?
The Court referred to the written agreement signed by
the employee which referred to “publications” on his
social media accounts.
The Court considered that a “LIKE” does not mean
that the publication is automatically posted on the
employee’s own “wall”, but 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.
4. THE LAW
Under Belgian Employment Law, there is “serious fault” if an action by an employee
makes the professional collaboration between employee and employer impossible.
The Court considered that Liking bad taste content amounted to serious fault.
WHAT ABOUT FREEDOM OF
EXPRESSION?
Yes, but Court said 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 sensitive context, and the Likes would have a negative impact on its activities.
The Court also 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.
Wasthe
dismissalfora
Likejustified?
5. Compliance–Tips&
Tricks
for
Employees
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.
6. Compliance–Tips
&Tricksfor
Employers
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.
Trin 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!
7. PointstoNote
It is worth noting that whilst the case was heard
before a Belgian Court, these slides can be of useful
practical application whether you are based in Belgium
or elsewhere.
However, it is always worth seeking jurisdiction
specific advice).
This note is for guidance only and does not constitute
definitive legal advice.
The Decision is available via the reference: Cour de
Travail de Liège, 3e ch. – Decision of 24th March 2017.
8. AboutCharlotte
Gerrishand
GerrishLegal
Charlotte Gerrish is the founding lawyer of Gerrish
Legal and has over 10 years of commercial legal
experience working in international law firms and
companies in London, Paris, Brussels and
Luxembourg. She has specific expertise in Data
Protection & Privacy (GDPR), Digital, IT and Social
Media Law, Brand Protection, Trade Secrets and
Compliance.
Prior to founding Gerrish Legal, Charlotte Gerrish held
the position of Senior Legal Counsel at a global
consultancy and management company and has also
been appointed as a Tutor specialising in International
Corporate Compliance on the LL.M in International
Commercial Law at the University of Edinburgh.
www.gerrishlegal.com info@gerrishlegal.com
