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Social media has spawned ‘true detectives’ in employment claims

It would be foolish of claimants to assume their Facebook posts are secret, observe Madelaine Power and Jenny Hawrot

25 August 2015

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It is old hat to warn personal injury claimants that they may be put under surveillance and their social media activity monitored during the litigation process.

Until recently, this practice had not found its way into employment tribunals. However, the rise of colleagues connecting with each other on social media has led to tranches of readily accessible Facebook evidence which respondents seek to rely on.

Most, if not all of us, advise clients to protect their material online. We tell them to keep their Facebook settings private and never post in anger. Problems do arise, for claimant's at least, when they are still 'Facebook friends' with members of staff who still work for their ex-employer, or where they assume only their friends can see what they post. It is a small world; people talk and people can Facebook stalk.

A case in point is JF v MJR [2015]. The claimant, who had solicitors on the record, filed his ET1 four days out of time. At the preliminary hearing on the issue, he made an application to extend the time limit alleging it was 'not reasonably practicable' for the complaint to be presented before the end of the three-month period from the effective date of dismissal and that he presented his claim 'within such further period as the tribunal considers reasonable' (section 111(2)(b), ERA 1996).

The claimant asserted that he was suffering from anxiety and depression, his family had suffered a bereavement, his wife was unable to support him, and his ex-wife was preventing him from having contact with his children as he had not paid maintenance.

His representatives informed the tribunal that from the date of dismissal, through the conciliation period, and up to the date the ET1 was eventually filed, the claimant could not have filed the document sooner. Employment tribunals have extended time limits for less, but the claimant came undone when it came to Facebook.

During the four month period between dismissal and filing his claim, the claimant's Facebook demonstrated (by way of public status updates, check in's, tags and photographs) that he had hosted dinner parties, performed at all night DJ events, attended multiple nights out in bars, recorded new music in a recording studio, and had various nights in with his wife.

In most cases the triviality of the claimants' lives post-dismissal have very little, if anything, to do with their employment tribunal claim. However, in this case, the claimant could no longer substantiate his assertions that it was not reasonably practicable to submit his claim in time. His claim was dismissed.

There is one big lesson to be learnt from this case. We are all guilty of the temptation to over share our lives on social media. When there is litigation, a client would be foolish to think their social media material is secret because they are only connected with friends.

Madelaine Power, pictured, is a barrister at 7BR and Jenny Hawrot is a solicitor at Clarkson Wright & Jakes Ltd

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