A flight attendant in New Zealand who was dismissed for allegedly ‘pulling a sickie’ has been ordered by a court to disclose her Facebook entries for the period. But is this….legal?
Air New Zealand claimed that the employee, Gina Kensington, had fraudulently claimed two days’ pay for time she said she was caring for her sister. Ms Kensington took her case to the Employment Relations Authority (ERA) – the equivalent of the employment tribunals – to seek reinstatement, but instead faced a challenge from her former employer to produce bank records and Facebook pages to evidence the validity of her absence.
In spite of arguments from Ms Kensington that she had an expectation of privacy in relation to such personal and financial information, the ERA ordered her to make the information available. The ERA has not yet announced its decision.
In the UK, an order to disclose personal or financial information is likely to be protected by our human rights legislation. Article 8 of the European Convention on human rights, (incorporated into the UK by the Human Rights Act 1998) deals with an individual’s right to a private life, covering public and private interactions, including those on social media.
Respect for private life extends to the respect for private and confidential information, the storing and sharing of such information and respect for privacy when there is a reasonable expectation of privacy.
However, there are occasions where personal and private information makes its way into the public domain. Social media has made it easier than ever to share information about ourselves, our lives and our activities. Updating our status and location and sharing photos on social media sites has become integrated into our daily lives. By sharing such information, there is an argument that we should have less expectation of privacy and this is a view that has been shared by the courts and tribunals in the UK and abroad. The more ‘friends’ or ‘connections’ someone has and the more information they supply about their life, the less they can expect their privacy to be protected.
In the present case, it is the employee’s behaviour which has raised suspicion, either with the employer itself or with any number of the employee’s colleagues. Although the details might not be known, nor the process which the airline followed when dismissing Ms Kensington, if it had a reasonable suspicion of misconduct, supported by evidence and a thorough investigation, it may have been entitled to reach the conclusion it did.
In the UK, it is worth noting that an employee can be dismissed, without cause, during the first 24 months of the employment relationship, subject to certain exceptions. A dismissal for reasons connected with inappropriate conduct on social media sites, or unauthorised absence from work within this period could not, therefore, be challenged in the employment tribunals.
It is unlikely that the New Zealand example will be followed in the UK. However, employees in New Zealand and in the UK are well advised to take care over the information they post to social media sites, regardless of the stringency of their privacy settings and/or the nature of their relationship with their ‘friends’ and colleagues.
Kevin Poulter is an employment lawyer and blogger with a special interest in social media and workplace issues.
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