Employment law Advice

[PeelerPal]

Please can someone tell me if it ok for a firm or large company, or infact anybody to access a private facebook account using a third party who has access by the holders acceptance without warning to the account holder? My girlfriend's company used a colleague to access her facebook account and print off all of her status and personal information that only people that she accepts are allowed to view.

The information was used in a meeting and resulted in a written warning to my girlfriend but the information had absolutely no relevance to the meeting itself, when my girlfriend asked if they were allowed to access her personal profile, they told her that they were not sure and I therefore feel that they not only broken the law but infringed her privacy. Please can someone help as she needs to appeal within 7days.
Thank you

[squarebear]

If she has allowed these people on to her facebook then yes they can print off and view whatever she has allowed them to.

[redcrx]

and just because she has allowed friends to view, doesnt mean that those friends cant let others use their accounts or see whats on the screen.

Never write anything in your status that youre not happy for the world to read. Nothing on the internet is "private"

[bednobs]

does your g/f's work have a policy about facebook/social networking sites. You say it had nothing to do with the meeting - was the written warning to do with the things she had put on facebook or something else

[PeelerPal]

I was advised that the firm was in breach of the regulation of investigatory powers act, the human rights act and the ACAS code of practice regarding disciplinary procedure and grievance.
I would like clarification as to whether it deemed appropriate for the employer to access her facebook profile as evidence especially as they key pointed out things that she had put on her facebook status on a Sunday, which is not a contracted working day.
She has been signed off of work for stress related issues and the company wanted to know why she had posts saying she had a good night out etc..

If you need any other info please ask. Thanks for your advice

[factor-fiction]

I don't think the day of the week that she posted it is that important. Pesumably they do not believe she was genuinely ill. If she posted that on facebook and someone printed it off I don't see that as a breach of all the things you mention, and I don't see why they can't ask her about it. However if she is coverred by a doctor's note they are perhaps wasting their time questioning the genuiness of the absence.
How long has she worked there? If it's less than a year they can dismiss her. Has she been spoken to before about absence?

[PeelerPal]

I don't know if I am not making any sense about this but my point is, that the firm used a third party to access her facebook account WITHOUT her knowledge, print off things from her 'private life' that was not written or used during working hours and regardless of the content have invaded her privacy as they have no right to access her private websites without her permission or knowledge especially information that was posted outside of her normal contracted hours.
The information, which also holds information posted by other parties to her private page is now stored on her personnel file which I believe is in contravention of the data protection act and the invasion is in contravention of the RIPA and the viewing/sharing of the content is a contravention of the human rights act, what I need to knw is; Is this correct or can they just look at her facebook page whenever they chose and without her permission?

[TCL-MUMPING]

factor30 the fact that a person is submitting medical certificates does not prevent an employer from doubting an illness. If an employer has doubts about an illness or the length of absence, they can request that HM Revenue & Customs use their medical provider to examine the employee.

With regards to using Facebook, consider a case where an employee is off sick and is out and about enjoying their time off. They tell a work colleague this in confidence. That colleague may be a wee bit miffed and then tells the employer. The employer then uses that information when discussing the sick person's absence.

They could argue the information obtained from Facebook is of a similar standing to the conversation with a third party. The employer in ma example has not listened in to the private conversation, neither has yir girlfriend's employer directly accessed the Facebook account. If anything, the Facebook comments carry more weight than an alleged converation.

Have you spoken to ACAS about it?

[PeelerPal]

The medical issue is not the point I am trying to make and that side has been resolved but an appeal will be made accordingly to the decision.

The situation is that the employer asked a work colleague of my girlfriend to access her account as he was a 'friend' on her account and then print out all of her status history. As her facebook is not a public profile and is only available to those who she accepts and her employer has no friend connection to her pages. The colleague did do this and subsequently the employer used the information without the permission or knowledge of my girlfriend, against her.

It is my belief that I never gave permission for anybody outside of my friends or my girlfriends friends on facebook to distribute any information that I have posted to my girlfriend and therefore as I have posts on her profile, which is now stored information, the company have surely breached the data protection act.

With regards to the RIPA, an employer has no right to access ANY private communication from any employee unless it is accidental or freely available.

Should the employer be handed this information, they are NOT entitled to act upon it as it is classed as a gross invasion of privacy.

A gross invasion of privacy is a breach of the human rights act as it affects a persons 'Private life' This means that the company should not access any information that is deemed as private or request private information about that person and act upon it if it is not for the use of crime prevention, mis use of company communications or the prevention of confidential company information being distributed and because none of those points are the reason for the interception I believe she has a case. IS THIS THE CASE?

[TCL-MUMPING]

There have been several cases where employees have been dismissed for using Facebook to make derogatory comments about employers. If it were an offence under the RIPA or HRA to use the information obtained from Facebook, how come there have been no legal challenges?

[PeelerPal]

Theer have been many challenges but most of them unsuccessful as the cases where someone has made a comment about an employer has been directly to the employer or someone within the firm who has the authorisation to judge and make the decision as to discipline the employee on the statements made about the firm if the comments are deemed detremental to the firm on liable or inappropriate grounds.

This is not the case, this is simply the case of the firm not having access to the accounts, using a third party to gather information posted on the account by the acount holder without the account holders permission or knowledge and then using that information which was NOT freely availabe to them and in no way causing any detrement to the firm, it's ascoiates or any affiliates.

This is strictly a breach of privacy. When a facebook account is st up the user has the option to make their account private so that only the people they chose can view their pages, or they can make it open so that anyone can view their pages, therefore anyong accessing information on a private account without permission is infringing that persons personal life. Please correct me if I am wrong as I need to be 100% on this one.

[PeelerPal]

The point I am trying to make and seems to be getting lost somewhere is that the facebook issue had absolutely NO relevance to the meeting, was not appropriate to any part of the meeting and therefore should not have even been bought into question, the facebook print outs were used as an example of third party perception when that information was not even made available for that third party to view in the first place.

If I am off work for stress and then someone says to me that they saw my facebook status saying that I had a great night out on the booze with the lads, that doesn't mean I am not stressed and therefore irrelevant completly. If however I was signed off work for stress and posted, that I am not really stressed and pulled one over on the firm then it is a great example, do you see what I mean now?

[factor-fiction]

TCL Mumpin - Yes I agree that the fact that a person is submitting medical certificates does not prevent an employer from doubting an illness. What I meant was that if the employer doubts the genuiness it would be much more productive to get a second medical opinion than rely on someone's claim that they'd had a night on the town whilst off.

Peelerpal
Your points seem to be:

1. The facebook issue was not relevant to the meeting. In the employer's view it was. It seems a fair question for the employer to ask in the circumstances, although on its own the info wouldn't prove or disprove whether the person was truly unfit for work.

2. The employer had no rights to use private Facebook info. My only concern would be if the employer had forced the other employee to print off the information under a threat of some sort.

Can I ask again- what length of service did she have, and had she been spoken to before about absence.

[buildersmate]

The topic seems to have been pretty well aired by Factor and TCL.
The title of your question is 'Employment law advice'. I don't believe that any employment law, per se, has been broken. It is possible that the ACAS Code of Conduct has been breached, but that isn't a law. It is certainly nothing to do with Human Rights. RIPA is not my specialist subject.
What you appear to be alleging that that the employer breached a law of the land and hence committed a criminal offence in obtaining at least some of its alleged evidence against your girlfriend.
If that is the only source of info, you might have a point. I assume what happened was the employer conducted a disciplinary interview during which they asked her side of events surrounding her absence (not surrounding the FB entries). That should have been a key part of the evidence gathering. Having looked at all sides, they have decided to issue a written warning.
She could appeal, of course, but I would not advice appealing merely on the grounds of 'part of your evidence was unlawfully gathered'.
It does seem a bit extreme what they did, but stress-related issues are very difficult for an employer because it is relatively easy to 'swing a leg'.
I have been in similar situations - what we would do is seek the opinion of the company doctor as to whether having 'a night out' was compatible with doing one's utmost to get well again. I suggest it is this aspect that you should be focusing on and the companies conclusion that it wasn't - not the route by which information was gathered.

[brenda]

I do not know the answer to this question , so just a comment-- as the dangers of posting personal info on the net are so well known --why are people still stupid enough to do it ?

[Androcles]

Strikes me from what you have posted that your g/f has been caught banged to rights telling the company porkies and now you are desperate to get her off the hook she has caught herself on.

Really, the situation described is one I have come across many times, where an employee is off sick during the day and out having a good time in the evening, gets caught out doing it and then tries to blame everybody else, claiming that the information that got them caught out should not have been allowed to be seen by the employer.

You could argue that somebody who is out having a good time whilst signed off sick is obtaining pecuniary advantage by deception, or whatever it is called these days. Is it fair on work colleagues who have to cover your job?

About time to get real - if you boast about things on the internet, you had better be sure it is not going to end up where you don't want it to be - nothing is safe on places like Facebook or any other site like it and if it gets you caught then, you have only yourself to blame.

[PeelerPal]

Ok, thanks for those replies, I can catagorically state that my girlfriend has NOT been boasting about her actions in anyway that would make a third party percieve that she was misleading her employer, as I stated in an earlier answer, the employer used information that was posted on facebook that had no correlation to her absenses from work. The issue is simply this; my girlfriend was signed off from work by her doctor for work related stress and her doctor has advised that she take time to relax, enjoy herself and return her mental state back to a position that makes her feel happy, so the fact that she has put on her face book site that she has had a lovely weekend, does not constitute that she is per se pulling thr wool over the bosses eyes.

The point is straight, her employer used face book pages that they have no direct access to in order to back up their reasons for the disciplinary that was not relevant in the first place.

[buildersmate]

Well then she should appeal the written warning. The company should have a process for doing that - it ought to involve someone (or more than one) having a look at the process, the evidence, and the decision based upon the evidence. One cannot introduce new evidence.
Just a final point. It's a written warning we are talking about here - not a final written warning or a dismissal. This is a second stage of a disciplinary procedure (using the first stage might have been a verbal warning - some companies don't do that stage) so I would merely suggest being circumspect about the amount of pain a grief she goes through in pursuing this. Firstly it is potentially stressful for her. Secondly, what outcome is she wanting? - 'clear' her good name presumably. Sometimes it is just better to lie down and get on with life. I appreciate this is a dangerous thing to say to you, so I back it up as follows. Having worked in HR for a number of years, there are those staff who can be relied upon to be a pain in the arris, always know there rights and always seem to be obstructive of what management want to do. Some are interested in seeing that the process is fair, that they have had their say - true socialists perhaps. I can have a certain respect for that.
Others are just out to get what they can for themselves, throw sickies and run a fine line between just avoiding to be dismissed. You can be sure that some HR departments seek to look for a 'gotcha' for such people when they push the boat too far. That's human nature, I feel.
I am not passing comment on which category your gl falls into - merely that sticking one's head up above the parapet tends to get it noticed. After 12 months or less, a written warning just disappears.