What to do when a personal post becomes a professional problem
With social media firmly embedded in everyday life, the boundaries between an employee’s personal expression and professional obligations blur – creating potential legal headaches.
The challenge for employers is knowing when an employee’s online conduct justifies intervention, which is easier said than done.
“There may be a misunderstanding where people feel they’re protected if they make comments or express opinions on private profiles. They don’t always realise it may have an impact on their employer or colleagues,” Michael Yeates, Special Counsel at Black Bay Lawyers, told HRD.
“The difficulty is that the law doesn’t prohibit employers from taking action altogether — it’s about whether that conduct can be linked back to the workplace in a way that damages the relationship or the business.”
When a social post becomes a workplace problem
According to Yeates, there are several key factors to consider.
“You need to look at whether the post causes serious damage to the relationship of mutual trust, harms the employer’s reputation or profitability, or is incompatible with the employee’s duties,” he said.
But, Yeates noted, each case needs to be considered on their own merit because “it’s never black or white.”
This “hazard test” is central to determining whether an employer could act over out-of-hours conduct.
Recent case law, including Lattouf v ABC, had broadened the scope of protection to not only holding political views but expressing them.
This is “where things become really contentious", Yeates said. The reason for this is because of the fine balance between personal expression and the fact that case involved a public figure.
“In many circumstances, an ordinary employee could potentially put their views out on social media without repercussion. But it just shows how confusing this can be for employers,” Yeates outlined.
Assessing reasonableness in social media posting
A legal regulation that can cause confusion is the concept of reasonableness.
“Employees might think a retweet or a like is harmless, but in the eyes of the law, the impact of that action matters more than the intention,” Yates said. “If the post can be tied back to the business and damages trust, that’s where employers have grounds to act.”
He pointed out that not all employees were judged equally in this context. “An ordinary employee might express a personal opinion without consequences if there’s no link to their employer, but a public figure in a high-profile role is in a very different position.”
But, when faced with a potentially damaging post, Yeates warned against rushing into disciplinary action.
“You have to look at it objectively and ask: can this be related back to the business, and does it actually impact the employment relationship?” he said. “Just because a post doesn’t align with the company’s values doesn’t automatically mean it’s misconduct.”
Instead, Yeates advised employers to ensure their policies are watertight. “If your social media policy is vague, tidy it up. In today’s environment, merely offering suggestions or guidelines may no longer be enough. Employees need clear, enforceable directions about what is and isn’t acceptable.”
For HR leaders, the solution lay in proactive education. “Employers need to be investing in training, awareness, and policy clarity. The more employees understand the risks, the less likely they are to post something that puts their job — or the company’s reputation — in jeopardy.”
As Yeates concluded: “social media is an outlet, but it’s not a free pass. Both employers and employees need to understand the boundaries before they find themselves in a dispute.”
