Can an employer discipline employees for inappropriate posts on social media in an employee’s private time and on their personal social media account?
This was one of the subjects discussed by Barry Walsh, Partner and Head of Employment at our recent breakfast briefing on “The Digital Workplace – An Employment Law Perspective”.
Social media usage by Irish adults remains high. The most recent IPSOS/MRBI survey (February 2015) indicated that over 60% of Irish adults claimed to have a Facebook account. Corresponding figures for Twitter (28%) and LinkedIn (24%) are lower but still significant and overall indicate busy social media activity by Irish employees.
Is the social media post sufficiently connected to the employment?
Most such social media accounts are personal to the employee and most posts created by employees are personal and do not occur in the course of employment. However, occasionally such posts can still have a connection to the workplace. In cases where social media posts affect the reputation of the employer or constitute bullying and harassment of other employees, an employer may feel it necessary to formally investigate and potentially take disciplinary action.
When an employee at a small insurance brokerage in County Cork referred to one of the directors on her personal Facebook page as a “bitch”, the employer implemented procedures that ultimately led to the employee’s termination of employment. The employee’s unfair dismissal claim was rejected by the Employment Appeals Tribunal as the Tribunal felt dismissal was justified due to the breach of trust.
In a Northern Ireland Tribunal case, an employee who made offensive Facebook comments about a female colleague’s promiscuity from his home computer in his own time, but naming the company, had his dismissal upheld by the Tribunal. While the employee’s action did not necessarily bring his employer into disrepute, the posts did amount to sexual harassment by one employee of another, which ultimately justified his dismissal.
There are many other examples from case law in Ireland and, particularly, the UK which establish an employer’s right to take disciplinary actions in appropriate cases, even where the post is on a private social media account.
Importance of Social Media policy
In such cases, when considering whether an employee’s social media post constitutes misconduct justifying dismissal an employer should consider whether it has a Social Media employment policy circulated to employees which clearly identifies employee expectations in this area.
While it is rare for a Tribunal to find that a social media posting was truly private, employers should also check whether the disputed posting was made to a very limited following and what privacy settings the employee had engaged on its page.
Above all employers should consider what the actual impact of the employee communication is on its reputation or brand in order to determine whether there is a sufficient link between the activity and the employment. Alternatively, it may be that the employer has a duty to other employees to conduct a disciplinary process, for example, where bullying and harassment of one employee by another occurs through social media.
Irish law has generally upheld an employer’s right to take such action but, like any termination of employment, fair procedures must always be followed and any sanction must be proportionate.