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Social media and the Christmas party


Tuesday, November 26, 2019

It’s an unfortunate fact of life for employers that staff can sometimes enjoy themselves not wisely but too well at the Christmas party. While the majority of office functions pass without incident, every year a minority of employers have to consider disciplinary action because their employees behaved inappropriately.

An added dimension for employers in the age of the internet is the fact that people aren’t always circumspect about what they post online – disciplinary action may be necessary in circumstances where an employee posts something stupid for all the world to see and there is a clear link with their workplace.  Christmas parties aren’t immune to this by any measure.

The most notable example of this in recent years is the notorious incident when an employee of Wagamama posted a video of himself snorting cocaine while wearing a T-shirt with the company logo emblazoned across the front.  That is the kind of publicity that employers will want to avoid at all costs.

There are a number of simple precautions that an employer can take, particularly in advance of the office party. First of all, employers should ensure that they start from a position of strength – that they have in place policies addressing the use of social media, email and the Internet in the workplace.  These policies should set out clear and understandable rules on what is, and what is not, permitted. A copy should be provided to all employees at the commencement of employment and as in all other cases, new staff should be required to confirm in writing that they’ve read and understood the policy.

Among other things, the policy should establish what an employer is prepared to allow in practice – and in terms of social media, it should make it crystal–clear that employees should not post material on Facebook, Instagram or any other social media sites that has the potential to bring their employer into disrepute or otherwise damage the company’s image.

Assuming an employer has such a policy in place, a reminder email can be easily circulated in advance of the Christmas party warning staff that while they are expected to enjoy themselves – this is a social occasion after all – they are also expected to behave responsibly and in an adult fashion.

Naturally, an employer has other expectations in relation to staff behaviour at Christmas parties – any kind of unwanted or inappropriate behaviour is prohibited. Employers should always remember that their duty of care to provide a safe place of work during the working day extends to functions associated with the office – and a Christmas party is very much a social occasion that is associated with the workplace.

Because of this, precisely the same standards apply and employers have just as much of a duty to protect their staff from harassment (sexual or otherwise) as they do in the office itself.  Employers should make sure that staff are aware of the appropriate way to behave during the party.

In addition, employers should be vigilant at the party itself – there is no harm in stepping in to nip a problem in the bud. In larger organisations, managers can be informally asked to keep an eye on things. There’s obviously no need to be heavy–handed; all that’s required is a bit of common sense.

In circumstances where pre-emptive action isn’t enough and where an employee, despite being warned not to, goes ahead and post something inappropriate on social media, such as images of drunken behaviour at the Christmas party, an employer isn’t without remedy.

Assuming there’s a policy in place governing use of social media with a connection to the workplace, there’s nothing to prevent an employer from taking disciplinary action.  The courts and tribunals have had to look at the interaction between social media and the workplace with increasing frequency in recent years and a number of principles flow from that.

To begin with, as a general rule the punishment should fit the crime – if an employee posts a drunken video but only a tiny number of people have actually watched it, a lesser sanction will definitely be appropriate.  Putting it another way, if no damage has actually been suffered by the employer, it will be much more difficult to convince the WRC that termination of employment, to take one example, was the appropriate remedy.

If, on the other hand, there is some evidence to believe that the employer’s reputation has been damaged by the conduct in question (the Wagamama case comes to mind here), it may be appropriate to impose a more severe sanction, depending upon the circumstances.

The key thing for employers to do is to maintain a cool head – and act reasonably and objectively.  Employers shouldn’t be afraid to take action in genuine cases – but should always ensure that they’re proportionate in their response.

 


Author

Patrick Walshe

PARTNER


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