27th January, 2021
Even as social media scandals keep making headlines, people still get caught out by unprofessional blunders – and they’re making it to court.
The role of social media in the workplace has been endlessly talked about, but people are still making mistakes in view of the whole world.
“It’s [social media] now such an established part of people’s lives that it pops up in heaps of cases. It may not be the sole issue, but it pops up a lot,” Hall Payne Lawyers principal, Luke Forsyth, told The Pulse.
“Social media is an interesting activity because if you go to the pub and you say, ‘my employer’s just terrible’ and you vent about the business – that’s the way you used to do it.”
“Now they go online after work and they vent. That venting doesn’t exist in the moment – it stays on the record.”
Previously the law may have allowed some leeway for defendants stating that they didn’t know they were publishing their thoughts to the wider world, but this is no longer the case.
“The number of people still out there who have unrestricted privacy settings, quite frankly, is unbelievable,” said Forsyth. “If you don’t have privacy settings on, you’re communicating to the whole world.”
So how are both employers and employees getting into legal trouble from what they post on social media? And how can an employer make sure everybody uses social media as freely and easily as possible?
Forsyth said in most of cases it’s the employees who are getting into trouble in the context of contravening a company policy or straight-up defamation.
“The most common stuff is that you have a bad day at work, you go home and you sledge your manager,” he said.
“You’re friends with other people at work and someone on your friends list sends the Facebook post to your boss. Before you know it, you’re being disciplined about what you said on Facebook.”
Problem areas can include revealing unreleased information (if the employee is at a listed company) and bringing a company into disrepute through online conduct.
But it’s not just employees getting into trouble.
Forsyth said it’s less likely that an employer or manager gets into trouble for things they post online, but it still happens.
Typically, it’s for inadvertently revealing damaging information about the company they work for, but there are instances where managers’ online conduct has been in unfair dismissal cases.
“Mainly, when it comes to differential treatment,” explained Forsyth. “An employee may say ‘well I got sacked for posting this, but the bloke who sacked me has been posting far worse things’.”
So how do you avoid the social media blues altogether?
The first step to making sure your employees aren’t going to get into trouble on social media is to go beyond the standard LinkedIn stalk when you hire somebody.
“There’s no doubt that a part of any competent recruitment process is looking at peoples’ social media profiles,” said Forsyth. “If people aren’t at least LinkedIn stalking applicants, then they’re mad.”
He says by looking at the social media presence of a potential employee, an employer can get an idea of what sort of things they’re likely to put out.
“For example, their Facebook may talk about how they were sacked and what an a-hole the boss was. That’s useful information to have,” said Forsyth.
Once the person is hired, Forsyth advised having a social media policy was a great first step – but making it available and getting the employee to acknowledge that they’ve actually read it was crucial.
“Most employment contracts will make it clear that by accepting employment you need to abide by the employer’s policies, and if you have a social media policy available, then there’s an agreement that they’ll abide by that policy,” said Forsyth.
“That constitutes a direction but may also constitute a contractual obligation.”
He said how stringent an employer applied those guidelines was up to the individual employer.
“Those policies can be quite oppressive and damage morale,” said Forsyth.
“People come to work, and you want them to be happy and productive people at work, but if you’re intruding into their lives outside work, that’s not a particularly positive thing to be engaging in.”
Ultimately, Forsyth said having a quiet word to people about their social media use was the way to go in most cases.
“Unless there’s other stuff going on relating to their performance and conduct, the sensible approach is to sit the person down and say: ‘look, that’s not behaviour that’s appropriate as an employee of the business and we’re directing you to not disparage the company or its employees on social media’,” he said.