Monday, August 12, 2013
The Independent reports that a New Zealand woman who was sacked for allegedly "throwing a sickie" has been ordered to hand over Facebook and Bank records to show whether she was genuinely ill. She was taking her employer to the local equivalent of the Employment Tribunal. Judgment is now awaited. The decision to order disclosure would probably have been the same in the UK. If the evidence was relevant because it would show that the employee was not genuinely ill (or prove that she was) then it is very likely that she would have been required to let the employer see it. Tribunals in a number of employment cases have held that there is no expectation of privacy in respect of what is on social networking sites. Even if you have strict privacy settings or only a small circle of online "friends" the information is to be treated as being in public domain, not least as people can always forward comments on to their own "friends." Generally parties to Employment Tribunal proceedings are under an obligation to disclose documents (which includes things like Facebook updates, text messages and pretty much anything else which contains information) if it is relevant to an issue in the case, whether or not it is helpful to the case of the party whose information it is. The message to employees - if you are not genuinely ill make sure you do not incriminate yourself by posting pictures of that away game you went to while you were supposed to be on your deathbed. The message to employers - you are entitled to scrutinise whether someone's absence is genuine and ask for evidence if you are not sure. However do not jump to conclusions. If you dismiss someone without a fair hearing and without reasonable grounds for doing so then you can be liable to pay compensation for Unfair Dismissal. If someone is off sick with stress then going for a walk may be therapeutic rather than evidence that they are "swinging the lead."