Air New Zealand claimed that the employee, Gina Kensington, had fraudulently claimed 2 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, any order to disclose such personal or financial information is likely to be protected by our Human Rights legislation. However, should such personal information make its way into the public domain, there may be less of an expectation of privacy.
An employer is entitled to conduct an investigation into any allegations of misconduct. If there is a genuine belief that an employee has behaved improperly or an allegation is made against an employee, an employer should take care to thoroughly investigate the circumstances by considering the information available to it. Often this may be the evidence of other employees, who are ‘friends’ or ‘followers’ of the at risk employee.
Employers should treat Investigations resulting from social media indiscretions in the same way as they would treat any other misconduct allegation. If the evidence is based on hearsay, an employer should take extra care to determine the validity and authenticity of the facts and resist the temptation to jump to conclusions.
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 privacy settings they believe they are protected by.