Employers can fire employees for Facebook posts or other social media comments outside of work hours, but doing so may be costly if they don’t follow basic workplace laws and procedures.
According to Ms Jenny Inness, Senior Associate at Harmers Workplace Lawyers, employers should first consider whether the employee’s conduct is sufficiently connected to the employment relationship before taking action in response to erring employees in the digital sphere.
Ms Inness said that an employer’s right to take action for ‘after hours’ conduct has always been a complex issue. “It’s a tricky balance between an employee’s right to privacy and an employer’s right to protect its organisation,” she said.
She said an employer is permitted to take action against an employee (including dismissal) because of their ‘after hours’ (or ‘private’) activities if the conduct is connected with the relationship of employment and has serious enough implications for the employer.
“Social media has certainly upped the stakes for employees making damaging comments about their companies, as it is such a visible public forum. It’s becoming increasingly common for employees to use social media sites to criticise their place of work, or a colleague, or boast about things like going to the beach on a day when they have called in sick,” Ms Inness said. “Employees have obligations of good faith to their employer, and this type of activity can breach that duty of good faith.
“While an employee’s actions may be inappropriate, and potentially damaging to a company’s reputation, employers must still follow basic workplace rules before taking disciplinary action,” she said.
“There are obviously instances where dismissal may be an acceptable course of action following comments made through social media, but only when it has serious implications for the company or its personnel,” Ms Inness said. “In instances where social media posts are not directly related to the company, or in the ‘personal realm’, it can be difficult to make a case.”
Instances where employers may have reasonable grounds for disciplinary action against an employee include social media posts that:
· harm or damage the company’s reputation and business interests;
· disclose confidential information to others outside the business;
· harass or bully work colleagues;
· disparage customers or clients of the business.