Employment Law: Anti-social media - what can an employer do if an employee is misbehaving online?

During work hours, they are your star employee and the public face of your business. One day, you get a call from a concerned client sending you a link to your employee’s Facebook page. It turns out that your employee has been posting nasty comments all over Facebook. Your client tells you that if you can’t get your employee under control they will be taking their business elsewhere. When you approach your employee they simply shrug and tell you that they have the right to free speech.

Don’t stress, you aren’t the only person who has been in this position.

Many employer’s may be surprised to find out that they have the right to investigate behaviour which occurs outside work if that behaviour brings the employer’s reputation into disrepute. This may seem straightforward, but can be hard to apply in practice. Recently, Forsyth Barr faced a similar situation with a senior analyst, Mr Hallwright. Mr Hallwright was convicted following a road rage incident. The incident attracted significant media attention which identified both Mr Hallwright and his employer. Despite the event occurring outside work hours and not being directly related to Mr Hallwright’s employment, Forsyth Barr was justified in terminating his employment on the basis that his actions brought its reputation into disrepute.

The Court in Hallwright v Forsyth Barr said that an employer may be justified in taking disciplinary action against an employee if it can show that the employee’s behaviour:

• damaged its business;

• is incompatible with the proper discharge of their duties;

• impacts other employees; or

• undermines the necessary trust and confidence between the employer and employee.

Online behaviour is also captured. Both the Authority and the Employment Court recognise the power of social media to distribute information to a wide audience, even if the employee has a “private” social media account which can only be accessed by their “friends”. The current Chief Judge of the Employment Court puts it this way:

“Facebook posts, even those ostensibly protected by a privacy setting, may not be regarded as protected communications beyond the reach of employment processes. After all, how private is a written conversation initiated over the internet with 200 “friends”, who can pass the information on to a limitless audience?”

The Authority has applied this principle a number of times. First instance, it had no issue finding that a public servant who posted on Facebook that she was a “very expensive paperweight who is highly competent in the art of time wastage, blame shifting and stationary [sic] theft’ could be subject to disciplinary action.

Likewise in the case X v Chief Executive of the Department of Corrections, the Employment Court found that the employer was entitled to investigate personal Facebook posts in which the employee made nasty remarks about another staff member (who also happened to be his ex-girlfriend). The employee attempted to argue that the Facebook post was private correspondence and he was merely relaying to his Facebook friends what he understood to be facts. The Judge stated that “While the Facebook post was not published to the world, Mr X must have known the identity of his Facebook friends and that they were, largely, other employees of the Department. He must also have known that his post was capable of being distributed more widely than just to them.” The employer successfully argued that the employee’s behaviour was a breach of its social media policy and so it was entitled to investigate that behaviour.

What type of social media posts will bring the employer into disrepute? It can be difficult to draw the line between the private expressions of opinion and offensive material which brings the employer’s reputation into disrepute. When deciding this issue, the Courts will ask whether a neutral, objective fair-minded and independent observer appropriately apprised of the relevant circumstances could consider the actions to have brought, or risk bringing, the employer into disrepute. It is also not the employer’s subjective view that is relevant, but whether the wider public believes that the employer’s reputation has been negatively affected. The best way to know this is to hear it from the horse’s mouth. This is what occurred in Hallwright where clients contacted the employer expressing their concerns about Mr Hallwright’s behaviour. The disrepute must relate to the employer, not the individual employee. Unpopular (but not offensive) political views, or details of a family dispute which no reasonable person would associate with the employer are unlikely to bring it into disrepute.

Whether or not the employee is Facebook “friends” with other colleagues will also be important. The Employment Court in X v Chief Executive of the Department of Corrections was influenced by the fact that the employee in question was friends with a number of his colleagues on Facebook. The derogatory comments about his ex-partner (and colleague) were likely to create a toxic work environment. In that case, the comments were directed to one person, however comments directed at a group of people could also create a hostile work environment. Racist, sexist, homophobic or islamophobic comments on Facebook which can be viewed by fellow employees could create a hostile work environment in much the same way as if those comments had been made at an afterwork social event. This is particularly so if those colleagues are directly targeted by the comments.

While it is established that an employer can take into account social media posts, this does not extend to an employer being able to force employees to give them access to their private Facebook account. In Hammond v Credit Union Baywide a photo from a former employee’s private Facebook page was found to be personal information under the Privacy Act 1993. The disgruntled former employee posted a photo of a cake with the words “F**k U Credit Union” iced on the top. The Human Rights Review Tribunal was critical of the fact that the Human Resource Manager coerced a junior staff member into giving her access to her Facebook account so that the Human Resources manager could take a screen shot of the photo. As the Human Rights Review Tribunal had previously found that the Facebook posts were personal information, the Human Resources Manager’s actions were a breach of privacy.

On its face, it’s hard to reconcile Hammond v Credit Union Baywide with the decisions from the Employment Relations Authority and Employment Court. While an employer can take into account social media posts when disciplining an employee, they can not directly ask for that information if the employee has a private account. The employer will need to become aware of that information either because they are “friends” with the employee on Facebook, or because they have been made aware of that information through other employees, clients or customers. In practice, this may not pose as much of a problem as it first appears. An employer can only take disciplinary action against an employee whose behaviour on social media is affecting their ability to carrying out their role. If an employer is unaware of the employee’s behaviour, or that behaviour has not been brought to its attention by other employees or customers, it is unlikely that it is affecting the employee’s ability to do their job.

Vitriolic Facebook comments, even on a private Facebook account, could potentially be grounds for disciplinary action up to dismissal. Whether an employers actions are justified will depend on the specific nature of each case. Amongst other things, employers will need to weigh up the nature of the social media posts, the effect that those posts could have on its reputation, the nature of the employee’s role, and whether or not the employer or its staff can directly view those comments. Employees who are in senior positions or who represent their employer in public will face greater scrutiny. A well drafted social media policy will also assist employers in this regard, particularly if it has been created in consultation with employees.

What type of social media posts will bring the employer into disrepute?

Going back to our star employee with the habit of online trolling. The employer would be well within its rights to start an investigation which may lead to disciplinary action, particularly if it had a well drafted social media policy. The response that this was just “free speech” wouldn’t cut it.

Claire Mansell is a Senior Associate with Martelli McKegg Lawyers who specialises in employment law.