According to the news story, following an online campaign, the school told the teacher that she could return to her job as a teacher if she wished. Ultimately, it is unlikely that, in the UK, such a dismissal would be fair but it does raise some interesting issues which I explore in this article.
The legal position
In the UK, broadly speaking, an employee will only be dismissed fairly if there is a fair reason to dismiss the employee, a fair process has been followed and it was reasonable in all the circumstances to dismiss. The Employment Rights Act 1996 sets out the potentially fair reasons for dismissal which include conduct and "some other substantial reason" ("SOSR"). The latter can include instances in which the employer alleges the employee has damaged or risked causing damage to the employer's reputation. It is likely that any employer who dismissed an employee as a result of a social media post, would seek to rely upon one of these potentially fair reasons. If relying upon the potentially fair reason of conduct, the employer would need to demonstrate that the decision to dismiss was within the "band of reasonable responses".
Is an employer though able to fairly dismiss an employee for what they post on their personal social network profiles? There have only been a couple of cases to date at appellate level which have dealt with this issue. The first was Game Retail Ltd v Laws which involved a series of tweets by an employee on his personal twitter account. Game took the view that the tweets were offensive and the employee was dismissed. The Employment Tribunal found that his dismissal was unfair but the Employment Appeal Tribunal ("EAT") disagreed and found that the dismissal was potentially fair. The second case at appellate level was Scottish Canals v David Smith. In this case Mr Smith had written offensive and derogatory comments on his personal Facebook account and had bragged about drinking alcohol when on stand by duty for Scottish Canals. Again the Employment Tribunal had found the dismissal to be unfair but the EAT disagreed finding that the dismissal had in fact been fair.
The general starting point is that simply because the social media profile is the employee's personal account, this will not prevent an employer fairly dismissing an employee on the basis of what they have posted on that account. Indeed there have been several decisions of the Employment Tribunal which have found that a dismissal for an employee's conduct on social media is fair. This is the case even if the privacy settings are restricted because the employee has no control over onward transmission of the information.
Neither of the EAT decisions mentioned above provided general guidelines with regards to social media dismissals and in Game Retail the EAT reiterated that the test continues to be whether the decision was within the "band of reasonable responses". Whether or not a dismissal will be fair in any particular situation will therefore depend very much on the particular facts.
There has been one case in the European Court of Human Rights (the "ECHR"), Pay v The United Kingdom, which involved online photographs of an employee which showed him engaging in bondage, domination and sado-masochism. Mr Pay was a probation officer who worked mainly with sex offenders. He argued that his dismissal as a result of these photographs breached his rights under the European Convention of Human Rights, in particular his right to private and family life under article 8, his right to freedom of speech under article 10 and his right not be discriminated against under article 14. The Employment Tribunal and EAT had found his dismissal to be fair. The ECHR found that Mr Pay owed a duty of loyalty, reserve and discretion to his employer and that the dismissal was not disproportionate.
As such, it is not only what an employee writes on their social media sites but also the pictures they post which could lead to their fair dismissal.
The Russian teacher's case
Given all of this, if a UK teacher had posted pictures of herself in a bikini on her Instagram page could a school have fairly dismissed her? Leaving aside the issue of procedural fairness, my view is that in this particular scenario a school would struggle to justify such a dismissal and persuade an Employment Tribunal that dismissal is within the band of reasonable responses. In Pay the pictures were clearly of a disturbing nature and given the particular role of the employee (i.e. a probation officer working mainly with sex offenders) it is apparent that these pictures would undermine the employer's trust and confidence in the employee. The pictures posted by the teacher in Russia were not of an overtly sexual nature and while she was modelling the bikinis, the pictures did not go beyond what you would expect of an ordinary picture of someone on holiday, in a bikini. In my view it would be difficult for a school to argue that posting these pictures amounted to misconduct, brought the school into disrepute or broke the bond of mutual trust and confidence with the employee.
Nevertheless the case law is clear in so far as showing that employees cannot post whatever they want on their social media profiles without any risk of disciplinary action. It is also now fairly common for employers to look at potential candidates' social media profiles prior to interview. Therefore, the answer to the question posed at the start of this article is yes - employees should think carefully about what they are posting on social media.
The case of the Russian teacher provides a lesson for employers too - do not act too hastily when considering the conduct of your employees on their personal social network accounts and what disciplinary action to take, if any. Key points for an employer to consider include: were the comments made or pictures posted during working hours and if so, what does the employer's social media policy say about employees' activity on such sites during working hours; does the employee's profile state who they work for or can the employee's employer otherwise be identified from the profile; the nature of the employee's role and whether the comments or the pictures are incompatible with that role or potentially undermine the employer's trust and confidence in the employee carrying out that role; are the comments on the face of it discriminatory or if they were said in person, would they potentially be considered to be offensive or viewed as instances of bullying or harassment towards another employee.
These are just a few of the factors that might be relevant. Employers should remember that while dealing with employee's conduct on social media is relatively new, Employment Tribunals in the UK apply the same tests in terms of determining whether or not a dismissal is fair as they do when dealing with any other type of misconduct or SOSR dismissal. All employers should now have a robust social media policy which makes clear that an employee's social media activity outside of working hours can still lead to disciplinary action regardless of what privacy settings the employee has set up.
We are advising more and more on issues relating to social media and if you would like to discuss any particular issues please get in touch.