Social Media Posts Could Give a Right to Terminate Employment Being Legal and Valid - Discussion on a Recent Bombay High Court Decision

The advent of social media has transformed the way people communicate, blurring the lines between personal and professional spheres. The rise of social media has blurred the lines between personal and professional lives, leaving many wondering about the boundaries of online expression for employees. While social media can help employee boost his/her career, connect with recruiters, and power a job search, a casual use can also cause harm to the reputation and employability of the employee. The internet has become a powerful platform for free expression, but for employees, it can also be a landmine of potential disciplinary action. It is not uncommon to see stories in the news about employees who were dismissed because of their online posts. This is particularly true in India, where Facebook enjoys immense popularity, questions arise about whether employees in India can be terminated for posting scandalous posts against their employer on Facebook? 

The above aspect was recently got addressed by the Bombay High Court in a recent judgment titled “Hitachi Astemo Fie Pvt. Ltd. Vs. Nirajkumar Prabhakarrao Kadu[1]” wherein the Bombay High Court while setting aside the judgment of Labour Court, Pune upheld the termination of an employee of Hitachi, an auto parts manufacturer, who was fired over provocative posts on Facebook.

As per the facts of the case, Nirajkumar was appointed as workman in Hitachi’s assembly section in 2003. As there was a dispute over wage settlement, Nirajkumar posted two posts on his Facebook account on February 20, 2017 which Hitachi regarded defamatory, intended to tarnish the image and reputation of the company and its management in the eyes of public at large, and to instigate and incite the workmen during the pendency of the wage settlement. A chargesheet was issued to Nirajkumar on February 25, 2017 for the two Facebook posts alleging act of ‘misconduct’ against him under clauses 24(d), 24(k) and 24(l) the Model Standing Orders. The Enquiry Officer vide his report dated April 26, 2018 held Nirajkumar guilty of misconduct, leading to termination of his services by issuing dismissal order dated May 02, 2018. Nirajkumar raised an industrial dispute to challenge his termination before the Labour Court which vide order dated May 31, 2023 held the inquiry and the termination order as invalid primarily on the grounds that the publication of Facebook posts had no remote connection with the working of the Company and that the misconduct i.e. publication happened outside Hitachi’s premises. Therefore, Hitachi challenged the said order before Bombay High Court.

The High Court observed that discipline is the hallmark of any employee / workman when he is required to conduct himself as a workman. Regulation of behaviour of workman is essential for peaceful conduct of industrial activity in the vicinity of the establishment as also within the premises of the establishment. In today’s technologically advanced world mobile phone is carried 24X7 by every person. Access to Facebook account is more conveniently accessed through the mobile phone. In that view of the matter, submissions made by Nirajkumar that the posts were not made from Hitachi’s premises or for posting the Facebook posts, Nirajkumar did not have a computer nor he was on the premises of the establishment cannot be accepted.

The Court observed that Nirajkumar failed to produce any evidence to the effect that his Facebook account was hacked and that he was not the author of the two Facebook posts. In that background, it was an admitted position that the aforesaid two Facebook posts were indeed posted by him and he therefore, could not escape the liability of having posted these two Facebook posts.

After examining the contents of the Facebook posts, the Court held that posting of such posts on the Facebook account and the comments received thereto are clearly an act of inciting hatred and passion against the management. Language used in the two Facebook posts clearly amounts to commission of an act which is subversive of discipline or good behaviour on the premises of the establishment when the aforementioned clauses of the Model Standing Order are broadly interpreted.

The Court observed that freedom of speech and expression cannot be allowed to be transgressed beyond reasonableness. If that is allowed, it could lead to disastrous consequences. In a given case, one cannot and should not wait for the consequences to occur. Such acts itself are required to be nipped in the bud. Otherwise it would convey a wrong signal to the society at large. In the present case, though it was vehementlyargued that no untoward incident had taken place, merely because no incident has taken place, the same cannot be a ground for discharging the act of posting the defamatory and provocative posts made especially when any disgruntled workman could have committed an untoward act by getting incited by the two Facebook posts and the comments received thereto.

The Court thus allowed the writ petition and while overruling the Labour Court’s order held that the enquiry conducted against Nirajkumar was absolutely fair and proper and the findings returned by the Enquiry Officer were upheld as being proper.

Anhad Law’s Perspective

The significance of the judgment is particularly pronounced in today's world, saturated with social media platforms such as Facebook, Twitter, and Instagram. The internet, and social media in particular, have eroded the boundaries between personal and professional life. Consequently, the distinction between online freedom of expression and workplace discipline becomes ambiguous, especially concerning employees' social media activities. In India, where social media usage is burgeoning, this issue takes on added importance, given the frequent occurrence in the modern employment landscape of disgruntled employees venting about their workplace on Facebook or criticizing their supervisors on Twitter, often oblivious to the legal consequences.

India upholds the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution. However, this right is not absolute and is subject to reasonable restrictions. Employment contracts commonly feature clauses related to confidentiality and a code of conduct, which may restrict an employee's right to express opinions that could harm the employer's reputation. Publishing scandalous content on social media platforms against the employer has been legally recognized in the past as potentially leading to injunctions and defamation claims against the employee. For example, in the case of "SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra," India's arguably first case on cyber defamation, the Delhi High Court restrained Jogesh Kwatra from sending derogatory and defamatory emails to the employer and its sister subsidiaries worldwide. Similarly, in the case of "Tata Value Homes Ltd. & Anr. Vs. Nityanand Sinha," the Bombay High Court restrained Nityanand Sinha, a former employee, from posting defamatory content on social media against his employer, a Tata group entity.

Many employment contracts in India include codes of conduct or ethical standards that employees are expected to follow. Some employers have implemented specific social media policies to regulate employees' online behavior, encompassing provisions on the use of social media, acceptable conduct on these platforms, and prohibitions against actions that could harm the employer's reputation. Violating such clauses could justify termination, as it would be seen as a breach of employment terms.

Globally, instances abound of employees being terminated for posting defamatory or confidential content. For instance, an employee was fired for an Instagram photo after securing a new client, as her post violated the company's media policy and could have compromised the public announcement of the new client.

A crucial lesson for an employees is to exercise prudence before posting any content on social media. Once something is posted, it is challenging, if not impossible, to retract, as even a deleted Facebook, Instagram, or Twitter post may be preserved through screenshots.

In conclusion, terminating an employee in India for posting scandalous content against their employer on Facebook requires a nuanced analysis of constitutional rights, employment contracts, labor laws, and the employer's specific policies. While employees have the right to freedom of expression, it is imperative to recognize the limitations imposed by employment agreements and the potential legal consequences of damaging an employer's reputation. Employers should diligently seek legal guidance in drafting employment contracts and social media policies to address these issues, offering clear guidance to employees and mitigating the risk of unwarranted termination.

[1] Writ Petition No. 13192 of 2023 pronounced on December 12, 2023