Social media use has changed the world. A single Twitter message can suddenly prove very popular and be retweeted so often that the number of readers exceeds that of the entire circulation of the national newspapers. While this is usually not the case, it is wise to take account of the fact that people are always looking over your shoulder. According to case law, social media use can have job consequences as well. Employers are reading it too, and employees have already been fired over it. The lines between public and private are becoming blurred.
What can go wrong when employees use social media? Below are a few examples that you can click on for more information on this subject:
- Using Facebook or other social media during working hours.
- Posting messages that are offensive to the employer or a colleague.
- Proof of breach of a non-competition clause.
- Failure to comply with internal guidelines on social media use.
Using Facebook or other social media during working hours.
When you are on the boss’ time, you are expected to work. However, not everyone with a computer at their disposal can resist the urge to update their Facebook page or post comments on friends’ Facebook pages – which friends may, for example, include colleagues.
Spending a lot of time on non-work related internet sites during working hours may be cause for dismissal. See, for example, this decision of the subdistrict court of Arnhem of 27 March 2012. In this case, the employee had acknowledged that he had spent a lot of time on gambling sites and sexually charged websites during working hours. Given this circumstance, the subdistrict court found that dismissal for urgent cause, without compensation, was justified.
Of course, it is advisable for employers to set clear rules for Internet use, and actually enforce them.
Posting messages that are offensive to the employer or a colleague.
If you are angry at your supervisor or your employer, expressing your displeasure on social media is not a good idea. A decision of the subdistrict court of Arnhem of 11 April 2012 involved an employee of JK Vloerverwarming, who had posted the following on his Facebook page:
“And yet again I get to work with the black guy tomorrow jesus ffs if they keep this up I am done #JK”
“What is coloured and does not work hard?”
‘Sheesh is this working day over yet? Please free me from this retard what an idiot!! #Ineedtheweekendffs’
Based on this, the subdistrict court found that the employee had made very negative and discriminatory comments about a colleague. Therefore, the subdistrict court set aside the employment agreement. The employee was given a neutral compensation, as his performance had otherwise been satisfactory and he had not been given a warning before.
Another example involved an employee of the Blokker retail shop, who joined Blokker as a warehouse worker on 2 January 2012. Two weeks later, he requested an advance on his wages, which request Blokker rejected. The employee reacted to this by making negative comments about Blokker and misbehaving on the work floor. The employee received an official warning for that. Exactly one month after joining the company, he posted the following message on his Facebook page:
“blokker what a shithole of a company I totally regret getting a job here you won’t believe the people that work there especially my team leader what a sneaky fake copper from nijmegen he is you can tell by the rotten tricks he plays that he is from nijmegen and used to be a copper that asshole but my day will come and believe me those fags will be crying”
In connection with this post, Blokker requested that the employment agreement be set aside. The subdistrict court found that the employee had grossly offended Blokker (decision of 19 March 2012). This post had nothing to do with freedom of speech. Facebook can only be considered the private domain of an employee to a limited extent. On Facebook, the term “friends” should be used loosely. Freedom of speech is limited by the due care that employees should exercise. As a good employee, he should have known better than to post this message. He had apologised to the team leader, but that was of no avail. There was urgent cause for dismissal within the meaning of the law, and the employment agreement was terminated with immediate effect, without compensation.
Proof of breach of a non-competition clause.
One of the major problems involved in enforcing a non-competition clause is getting the required evidence. It is hard to prove that the employee carried out competing work, or is approaching or has approached relations. If the employee makes use of social media for this, and LinkedIn in particular, this may provide a means of proving the breach. Below are a number of examples of cases in which this was at hand:
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The court in preliminary relief proceedings of Arnhem (8 March 2011) ruled that a former employee had breached the non-competition clause on two occasions, among others by using LinkedIn to contact a relation of the former employer.
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The Court of Appeals of The Hague (21 February 2012) ruled that an employee tweeting messages on behalf of his new employer did not constitute ‘maintaining business relations’ within the context of a non-competition clause.
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The court in preliminary relief proceedings of Arnhem (24 November 2011) ruled that corresponding with business relations by email and via Twitter, which included asking for a résumé, constituted a breach of the non-competition clause.
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The subdistrict Court of Utrecht (20 January 2010) ruled that a general activity that did not specifically target the region protected by the clause did not fall under the scope of the non-competition clause. This included having a participating interest in or being a co-owner of Vandaagwerkt B.V. i.o., which included being listed as the owner on LinkedIn and activating the website.
Failure to comply with internal guidelines on the use of the Internet, email and social media
To a certain extent, employees have the right to make use of the email and internet facilities made available by the employer for private purposes. In the Copland case, the European Court of Human Rights ruled that telephone, email and internet use comes under the definition of ‘private life’ and ‘correspondence’. Under certain circumstances, this use may be monitored. In the Netherlands, when monitoring this use, an employer has to comply with the conditions of the Dutch Personal Data Protection Act (Wet Bescherming Persoonsgegevens). It is advisable for an employer to draw up a guideline for internet and email use. This should contain a chapter on the circumstances under which and the manner in which the use will be monitored.
The same should apply to social media use. In most cases, the employer will have to allow limited personal use.
Information
If you require further information in connection with this article, you can contact Mieke Bestebreurtje.
