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Social Media – What can you post?

BY Donald MacKinnon
Employment Law & HR
BG Purple

Its hit the news this week that an employee was sacked in the United States after she uploaded a picture of herself giving the finger to US President Donald Trump. The employee, Juli Briskman, did not have any reference to her employer Akima, a Virginia based federal contractor on her Facebook page and the photograph was taken outside work time leading many of her supporters to call the dismissal unfair.

This has raised questions about what can be posted on social media by employees, what is deemed to be private, acceptable and whether it brings the company into disrepute. There have been many cases that Empire have dealt with in recent years where employees have been off sick only to post pictures and videos of them out partying or doing a strenuous physical activity. Other examples include people writing derogatory comments about their work online or bullying or harassing a colleague over the internet.  

To make it clear, an employee’s behaviour does not have to be directly associated to their work for an employer to take action. As long as there is a reasonable belief that the behaviour could have an impact on the ability of the individual to do the job, the employer can intervene. An example of this could be that customers and colleagues could see something posted and then make a judgement about working with that individual.

There have also been examples where employees post something with no intention to cause offence or bring the company into disrepute. An example of this was a case where an employee posted a video of a works karaoke night and was sacked for breach of confidentiality as she had not got the permission of the employer or the people in the video to post it which was against her employer’s policy. She subsequently won an unfair dismissal claim but this was due to errors in the process followed, rather than whether there was a fair reason for the dismissal.

Most companies now have a social media policy or a clause in their handbook stating their position. If you do not have a policy or a statement Empire can support you with this. In the meantime, you may want to adopt the following suggestions;

  • Prevent or limit staff using social media sites during working hours or on Company computers or devices.
  • Make it clear to employees that social media posts should be considered public and not private.
  • Suggest staff add a disclaimer to their Linkedin or Facebook page that says any comments are personal and do not reflect the views of the Company.
  • Make it clear that bullying and harassment will be dealt with by the Company, even if online.
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