When Employees + Social Media = “Off-Brand” Comments

Friday, March 4, 2022

What can you do if an employee comments on political or controversial issues on their personal social media? 

Freedom of expression has been a big topic in the media lately, particularly with the parliament protests and various political issues around the globe.   There are a range of scenarios where an employee’s off-duty conduct on social media gives rise to employment concerns.  Most commonly, these include:

  • misconduct or serious misconduct;
  • a breach of the implied duty of fidelity;
  • a breach of the individual employment agreement and / or relevant policies;
  • the employee acting in a way that is fundamentally inconsistent with the organisation’s values or purpose; or 
  • an employer is concerned that their organisation has been brought into disrepute through association with the comment.


Does the comment online directly impact the organisation and bring the employer into disrepute?

An employee’s personal time, or social media platforms, is generally their own business.  However, it is also well-established that certain “off-duty” conduct can justify dismissal, as an employee owes a duty of fidelity to their employer.

This applies to conversations, representations, or publications made on social media where an employee’s online conduct might reasonably be viewed to potentially inflict damage on their employer’s reputation and brand, or to undermine the employer’s trust and confidence in the employee - which may amount to bringing the employer into disrepute.  

The question for the employer is whether a decision to dismiss (or take other action) is one which a fair and reasonable employer would take in the circumstances. If an organisation is sensitive to public opinion and business interests may be damaged because of employee misconduct, it is important to make sure that employees know that certain standards must be met.

An employer should also ask whether there is a link between the online comment and the employee’s job and whether the conduct has harmed the employee’s employment (including the employer’s reputation).

Things to consider when deciding whether the conduct is linked to the employee’s job are:

  • Could the employer’s business be damaged?
  • Is the conduct compatible with the job the employee does?
  • Is there an impact on other employees?
  • Are there other factors undermining the necessary trust and confidence between the parties?

In summary, if an employee has acted inconsistently to their role and this negatively affects the organisation, the more likely that disciplinary action, serious misconduct allegations and termination become tenable options, so long as a fair process is followed prior to coming to a decision.  


So, what can an employer do to minimise unwanted consequences of online comments?

While it may not be possible to dictate what an employee can or cannot talk about outside of work if it is not related to their employment (refer the Bill of Rights Act 1990), a ‘gentle encouragement’ based policy can be used at first instance.  

We suggest implementing an appropriate social media policy that forms part of the terms and conditions of employment. The policy should encourage appropriate behaviour on social media and clearly set out the employer’s expectations with regards to the use of social media both within and outside the workplace.

A useful tool can be to request that each employee sign the policy separately to the employment agreement itself, acknowledging that they have reviewed it and have had the opportunity to ask questions / seek legal advice on the same. 


Conclusion

Employers must balance the need to protect their brand and reputation, with the need to ensure that employees rights of freedom of expression are not unreasonably curtailed.  The implementation of a clear social media term of employment or policy, brought to the attention of the employee, ensures that all parties have clear expectations around social media use. If an employer finds itself concerned that an employee has brought its reputation into disrepute online, a fair and reasonable process must be followed.

For more information in the employment space, please contact a member of our employment law team.

 

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose. While we make every effort to ensure the accuracy of the information contained in this article, this is a rapidly changing environment and the information will be subject to change.

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