Posts on social media can undoubtedly turn out to be wrong: companies get insight into facts that they would otherwise not have known. For example, Facebook photos from a party that got out of hand could result in dismissal.
When we think about Facebook, we mainly think of pleasure, and rightly so, of course. But for those who don’t pay attention, Facebook – or other social media – can have serious negative consequences: postings on social media can lead to dismissal.
To date, there is no specific legislation in some countries on the use or abuse of social media, but there is already case law in this regard that accepts that Facebook messages can be used to substantiate a dismissal for urgent reasons, despite the employee’s right to privacy.
You can be fired for a Facebook post in two ways:
You make statements on Facebook or other social media that are inconsistent with the standards and values of the company where you work. Consider, for example, criticism of the company, your boss, or your colleagues.
Via social media, the employer gets insight into facts that he would not have known otherwise. If they are of such a nature that you lose all confidence in the employee, this can lead to dismissal. It is not just about what you post yourself, but just like friends or colleagues posting or tagging a photo of you.
Be careful with the “friends of my friends” setting
If the profile of an employee is publicly accessible or if he is friends with several colleagues from the company, then his profile is considered to be a sufficient audience and the information available on this profile is basically useful evidence. For example, the case law has already ruled that the Facebook institution that makes information accessible only to “friends of my friends” offers no guarantee of privacy for employees. Even if the employer himself does not have access to the profile in question, case law usually allows the information to be used by the employer, as long as the information was lawfully obtained, of course.
Of course, the terms and conditions for dismissal must always be complied with for urgent reasons. For example, in principle, it is not required that the immediate reason for the dismissal is related to the performance of the employment contract. Facts from private life can also be a ground for termination for urgent basis, as long as they naturally make further professional cooperation definitive and immediately impossible. An extreme example is drug use or sexual excesses.
But a Facebook post of drunkenness next to the shop floor that leads to absence from work could just as well be a reason for dismissal for an urgent reason. Drug use outside of working hours that becomes visible on social media can be an immediate reason because this then happens openly and becomes public.
The position of the employee will also play a role in deciding for an urgent reason. A position as CFO, for example, with a specific hierarchy or a position of trust, is, therefore, an aggravating circumstance in this regard. Imagine: like thousands of other festivalgoers, Jacques, the CFO of the company No Comment, came back enthusiastically from a summer festival. Monday after the three-day event, however, a photo will appear on Facebook showing in the background how Jacques sniffs a suspicious line in a mud bath.
Another example: an employee is incapacitated for work, but a photo appears on the Facebook page of a local café showing that he or she is serving customers and is, therefore, earning a living.
Not just what you post yourself!
Important to remember: it is not only about what you post on Facebook or other social media, but also about photos that others put online in which they tag you, these can also lead to dismissal.