Ask a Lawyer: Can I fire someone for a social media mishap?

Employees mouthing off online can easily bring their employer into disrepute. Here's how to handle it

Ask a Lawyer: Can I fire someone for a social media mishap?
Thanks to the advent of social media, users can now broadcast their voice to a much broader audience – sadly, the platform isn’t always used for positive means.

British Airways recently found itself as the centre of a social media storm when one of its employees shared a racist video on Snapchat.

While reports indicate the employee no longer works for the airline, it’s left many employers wondering – what action can HR take if a team member posts something inappropriate?

Laura Scampion is an Auckland-based partner with global law firm DLA Piper – she says it depends very much on the employer’s policies.

“Most businesses should have a detailed social media policy to deal specifically with social media platforms,” says Scampion.

What should a good corporate social media policy include?
  • Addresses social media use both during and outside work hours
  • Defines the parameters of permitted use at work (e.g. when, for how long, and for what purpose)
  • Has express prohibitions in relation to online posts (either at work or otherwise):
  1. Covers derogatory comments about the company, colleagues or customers
  2. Covers disclosure of personal information about colleagues without their written consent
  3. Covers disclosure of confidential information belonging to the business
  4. Restricts employees from making disparaging online comments about third parties during work hours.
“The policy should deal with what will happen to the employee if they are found to be in breach of any of the above,” says Scampion. “Employees can be disciplined or even dismissed for social media activity/policy breach.”

While a strong social media policy gives employers more power, action can still be taken when there isn’t an explicit set of protocols in place.

“Action would also be warranted if there is no policy but the conduct clearly sits within another 'ground' of misconduct or serious misconduct,” explains Scampion.

What behaviours could be considered offensive or unacceptable?
  • Damage to reputation and brand caused by derogatory comments posted about the organisation by an employee, the organisation being associated with controversial opinions posted by an employee, and/or association with defamatory comments posted by an employee about a third party.
  • Breaches of security and confidentiality caused by information posted by an employee.
  • Liability for cyber bullying or harassment by employees and/or a third party.
  • Liability in respect of LinkedIn ‘recommendations’ posted by an employee’s colleagues.
  • A loss of productivity because of time spent by employees on social media sites while at work.
In the British Airways incident, the employee is uniformed and talking directly about customers but Scampion says the link doesn’t have to be so evident for employers to take action.

“The conduct does not have to take place during the course of their working hours or even be connected with the work they do on a day to day basis,” she tells HRD.

“An employee’s conduct on social media sites will be relevant to an employer if it affects the employee, or is likely to affect the employee, in respect of their work or if it affects the reputation of the business/organisation that the employee works for.”

Related stories:
Airline vows to investigate racist video
Plugging the social media knowledge gap

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