Thursday, July 16, 2015
Trinity College Dublin announced last week that they are going to convene an enquiry into certain Facebook posts published by a professor in the college. While the available details are limited, apparently the professor used his Facebook account to publish comments criticising students’ exam answers and may have actually included extracts from those answers in his postings.
Obviously the conduct and outcome of the investigation is a private matter for the college. However, it appears that the professor has conceded that the material appeared on his Facebook account and that his privacy settings were accidentally set to public. TCD has apologised “unreservedly for the breach of trust”.
There are a number of important lessons to be learned from this case (and from similar recent cases involving employment and social media). In the TCD case, it is highly likely that the employee did not believe that he was being inappropriate and probably made a genuine mistake in thinking that his Facebook settings were set to “private”. Nonetheless, his employer now has to grapple with a difficult issue given that the postings were available to the world at large.
With the advent of the internet and the explosion in different types of media sites and platforms, the business owner of 2016 face an entirely different set of challenges to the business owner of 1966, or even 1996. The last 10 – 15 years have seen an upsurge in cases involving social media coming before the courts and employment tribunals and it’s a trend that’s likely to continue.
These cases typically involve a dismissal as a result of alleged abuse of social media. They tend to fall into three main categories:
The final category is possibly the most difficult to deal with and typically involves employees posting images or videos that contain conduct that the employer views as inappropriate and having the potential to damage their corporate reputation.
We saw a recent example in Ireland of the latter category in May 2016. The Workplace Relations Commission threw out an unfair dismissal claim taken by an employee who was fired after his employer discovered that he had videoed himself snorting cocaine in a bathroom. Perhaps one striking and unusual feature of this case is that the employee was wearing a t-shirt with the employer’s logo prominently displayed on it at the time.
Other cases have involved videos of horseplay on the premises and, in one interesting 2014 decision, an image taken in an amusement park in Bangkok of an employee on holiday holding an imitation gun. In that case, the employee worked for an outreach service that dealt with victims of violence and gun crime and his employer believed that the photograph went too far.
The reported cases usefully identify a number of core principles. First and foremost, it is essential that an employer maintains a policy dealing with the use of social media, email and the internet in the workplace. That policy needs to set out clear and understandable rules on what is, and what is not, allowed.
It should also contain an accurate reflection of what an employer is prepared to allow in practice. By way of example, if an employer has only a very low threshold for personal email use in the workplace, that should be reflected in the policy. You can’t have one approach in theory and another in practice. A policy should also make it clear that employees are personally responsible for their social media usage and that the company’s disciplinary procedures may come into play if this principle is breached.
In taking disciplinary action, it’s also critical to assess whether actual damage has been occasioned by the employee’s actions. If there’s no evidence of anyone being disturbed by the image or video, it’s going to be more difficult to justify a dismissal.
The mere fact that an employer is angry, upset or apprehensive isn’t necessarily enough – caselaw seems to require an additional factor – whether the employer’s reputation was actually damaged. In a 2015 decision involving allegations of inappropriate use of email, the high court placed some reliance on the fact that nobody had complained about the inappropriate images contained in the messages.
All in all, this can be a minefield for employers and employees alike. Employees need to proceed sensibly and think twice before they publish material that could cause damage to their employer’s reputation. Employers, in turn, need to proceed carefully when disciplining employees for misuse of social media – as always, a reasonable and objective approach will pay dividends.