Social media today serve as a forum for expressing views on a wide variety of topics relating to both private and professional life. How should employers respond to employees’ activities in the virtual space that may conflict with the company’s values or even openly harm its interests?

Freedom of expression versus loyalty to the employer

An employee’s private beliefs are strictly protected. Under no circumstances may an employer investigate, assess or demand disclosure of an employee’s worldview or their opinions on any subject. Employees also have the right to express their own views and opinions, and even to criticise their employer – something that increasingly takes place on social media.

Activity on Facebook, TikTok, Platform X, LinkedIn or other sites is treated as a public statement, even if it originates from an employee’s private account. If these statements relate to the employee’s professional life, the employer may expect them to be appropriate in form and content.

This often leads to a clash between two values arising from the applicable legislation – freedom of expression and loyalty to the employer. On the one hand, employees enjoy freedom of opinion and the right to express their views (Articles 53–54 of the Polish Constitution, Article 10 of the European Convention on Human Rights). On the other, they are obliged to look after the interests of the workplace and to observe the principles of social harmony (Article 100 § 2 points 4 and 6 of the Labour Code).

This means that within the context of employment, freedom of speech, and in particular the employee’s right to criticise, is not absolute. Employees cannot be denied the right to assess their employer, including negatively, provided, however, that the opinion is objective and plausible, is proportionate to the circumstances, has been expressed in an appropriate manner, and is based on good faith. If an employee crosses these defined boundaries, they risk being accused of breaching their duty of loyalty and damaging the employer’s reputation.

How should employers manage their staff’s social media activity?

Employers have a number of tools available to them to regulate, organise and monitor employees’ online activity. To ensure high standards of communication, it is advisable to establish an employer branding policy and guidelines for the use of social media, as well as to monitor employees’ online activity.

• Establishing an employer branding policy

The policy should include clear rules on how employees identify themselves on social media (e.g. the obligation to specify that a post is private in nature), set out standards for communicating on behalf of the employer, and contain guidelines for building a consistent employer brand message.

• Adoption of a social media policy

The policy should specify, amongst other things, the scope of permissible employee activity, rules for publishing content related to the employer, a prohibition on disclosing confidential information and trade secrets, rules for using social media during working hours and on company equipment, as well as the consequences of breaching the established rules.

This document should be clear and compliant with applicable laws, in particular labour law and data protection legislation. The measures set out in the policy should be proportionate – i.e. ensure the protection of the employer’s interests without unduly infringing on employees’ rights (in particular, freedom of speech).

• Monitoring employees’ online activity

This practice is controversial because employers do not have the right to constantly and proactively monitor employees’ behaviour on social media. Such action would violate employees’ right to privacy. However, an employer may take action if they become aware, from specific sources, of an employee’s statements that may violate the employee’s duty to act in the best interests of the workplace (e.g., they constitute hate speech, exceed the bounds of permissible criticism of the employer, or violate the confidentiality obligation). In such a situation, the employer may, [in our opinion] take appropriate action; however, any such ad hoc review of an employee’s online statements should be conducted on a case-by-case basis, taking into account the specific circumstances of the matter.

Sanctions for overstepping the mark – from a chat to disciplinary action

The implementation of these measures has significant practical implications – if an employee breaches the rules set out in internal documents, the very existence of such documents and the fact that the employee has been made aware of them beforehand further support the justification for imposing the prescribed consequences, including disciplinary measures.

In addition to a breach of a specific obligation arising from policies or regulations, the assessment of the conduct in question in the context of general statutory obligations will be of key importance: the duty to act in the best interests of the workplace (Article  100 § 2 point 4 of the Labour Code) and the duty to observe the principles of social harmony (Article 100 § 2 point 6 of the Labour Code).

Depending on the seriousness of the breach, the employer may resort to:

• a disciplinary interview,
• a disciplinary fine (Article 108 of the Labour Code),
• termination of the employment contract (Article 30 § 1 point 2 of the Labour Code) or
• disciplinary dismissal on the grounds of a serious breach of fundamental employee duties (Article 52 § 1 point 1 of the Labour Code).

The assessment of whether the employee’s conduct constituted the exercise of the right to freedom of expression or transgressed the boundaries of permissible criticism is made by taking account of all the circumstances, including the content and form of the statement, publication reach, the employee’s intentions, and the actual or potential impact on the employer’s interests. There are no clear-cut rules in this regard – the courts assess the facts of each case on an individual basis. However, existing case law provides certain interpretative guidelines that are useful when classifying specific breaches by employees.

Can an employee be dismissed for a ‘like’?

Case law has taken a fairly clear stance on this issue. Simply ‘liking’ a post does not justify the termination of an employment contract. This is confirmed by the judgment of the European Court of Human Rights of 15 June 2021 (Melike v. Turkey, application no. 35786/19), which found that the dismissal of a cleaner employed at a state school for liking political posts shared on Facebook, containing content which, in the employer’s view, could indirectly damage its reputation, constituted a violation of the right to freedom of expression.

Under Polish law, the District Court for Warszawa Praga-Południe ruled similarly, stating that an employee who did not publish any offensive content or comments, but merely ‘liked’ posts, did not breach their employment duties  in a manner justifying disciplinary dismissal (judgment of 28 October 2019, VI P 19/18). Similarly, the District Court in Człuchów (judgment of 18 November 2025, IV P 83/25) ruled that a municipal office employee’s posting of a positive reaction (a heart) under an offensive online comment regarding the work of that office was a one-off occurrence and constituted a relatively minor breach of the duty to look after the interests of the workplace, which objectively could not constitute grounds for a loss of trust.

And what about a comment or a photo?

In this regard, employers have greater leeway. Within the scope of freedom of speech, ‘vivid’, controversial, uncomfortable statements that cause discomfort to some recipients are permitted. However, the line is drawn where the interests of others are clearly compromised. The District Court for Szczecin-Centrum (judgment of 16 June 2023, IX P 154/22) held that the reaction of an employer who terminated an employment contract on disciplinary grounds with an individual who publicly expressed xenophobic and racist views, thereby damaging the employer’s reputation, was proportionate and could not be regarded as discriminatory or unlawful.

In turn, in its judgment of 10 May 2018 (II PK 74/17), the Supreme Court ruled that repeated offensive comments regarding the conduct of the workplace’s management, persistent insults and undermining of their authority justify holding the employee responsible for breaching the principle of loyal conduct towards the employer and constitute grounds for disciplinary dismissal.

In the context of sharing photographs, reference may be made to the judgment of the District Court in Świdnica of 17 December 2014 (IV P 176/14), in which it was held that an employee’s posting on Facebook of a photograph showing him with his feet on the desk, accompanied by an ironic comment suggesting a dismissive attitude towards his professional duties, constituted a circumstance further justifying the termination of the contract without notice. The court emphasised that such a post demonstrated the employee’s nonchalant attitude towards the tasks entrusted to him and damaged the employer’s reputation.

Summary

A ‘like’ does not justify dismissal – both the case law of the European Court of Human Rights and that of Polish courts indicate quite clearly that simply ‘liking’ a post does not constitute sufficient grounds for dismissing an employee. However, in the case of verbal criticism of the employer, a thorough assessment of the circumstances, the form of the statement and its impact on workplace relations and atmosphere is required in each instance. A key tool for protecting the interests of both parties remains a transparent social media policy, which – if properly drafted – allows a line to be drawn between permissible freedom of speech and a breach of employment duties. It is also important to ensure that evidence is properly secured – once a post or photo disappears, it will be difficult to prove the breach.

Michał Mieszkowski

This article is based on a presentation given during the HR Law 2026 webinar. Trends