Big Brother at work: How 'personal' are personal posts?
How far can bosses go in stopping staff posting online? Here are some general guidelines from the legal experts
This is the first in a series of articles by employment lawyers Simmons & Simmons on topical employment law issues in Hong Kong and the mainland. The firm has more than 800 legal staff in 22 locations in key business and financial centres across Asia, Europe and the Middle East, with a specialist focus on energy and infrastructure, financial institutions, asset management, life sciences and telecoms, media and technology (TMT) sectors.
Employees’ use of social media can be a significant concern for employers and inappropriate use can have professional consequences. This issue can be difficult to navigate but a responsible employer can always take steps to reduce risk by developing clear policies and actively engaging with employees about their responsibilities in the online world. Take the following example.
An employee has posted a racist remark on Facebook. It does not refer to the staff’s work or company, but was seen by a client, who recognised the author as an employee of the company. That client professes to be very offended by the post and has threatened to withdraw business. The CEO has smoothed things over but is furious with the employee and wants to dismiss him immediately.
Situations like this create challenges. Would your response be different if the remark was about a colleague’s after-hours activities, criticism of a management decision or the company’s products?
With the continued popularity of social media, and the ability to post content online at any time and from any place, the line between what is purely personal and what might have professional ramifications has become increasingly blurred.
An employer must carefully consider to what extent it will seek to control employees’ use of social media, and may have to decide whether it is ever appropriate to dismiss an employee summarily for inappropriate use.
No case in Hong Kong has dealt with these issues. But case law from England and other jurisdictions offers helpful guidance on factors a court may consider if the matter arose for determination. These include:
1. Could the posting be connected to the employer? Could the views expressed be attributed to the company, as well as or instead of the individual, for example, because the company had been named, or due to the employee’s position?
2. Could the posting be viewed as a “workplace” issue? Does it contravene applicable laws, such as the Race Discrimination Ordinance? Might it disclose misconduct, such as malingering, breach of policy, confidentiality obligations or duties of fidelity? Does it involve threats or bullying or disparage the company, management or colleagues?
3. What was the extent of exposure, including how long the posting was online and who could, and did, view it?
4. Are there any mitigating or aggravating factors, for example, the employee’s reason for the posting and his response when asked about it?
Online activities can have both legal and professional consequences. Privacy settings are no substitute for good judgement, as postings can be copied and passed to others. Employers should take pro-active measures to minimise the risks to business arising from mis-use of social media.
The first step is to introduce a clear written policy. This should make clear what is, and is not, acceptable use. It could include that employees should not use social media sites during office hours, or post derogatory comments about the company or other employees. It is vital that employers educate their employees, at all levels, about that policy and employees’ responsibilities, when using social media both at work and at home, in order to prevent inappropriate use.
Examples can illustrate guiding principles. A policy should make it clear unacceptable social media use will not be tolerated and may be grounds for dismissal. A social media policy’s content should be consistent with–and where appropriate cross-reference – related policies such as media communications, confidentiality, equal opportunities and bullying or harassment.
Compliance should be monitored and a consistent approach taken on breaches. A policy should be reviewed regularly to keep pace with technology and changing legal and public attitudes on acceptable social media use.
In the example given above, the employer must tread carefully when dealing with the employee’s potential mis-use of social media and dismissal on these grounds.
On the one hand, it could be argued that the employee’s posting was made outside working hours, without reference to the company, and therefore no reasonable reader would connect this posting to the employer.
On the other hand, the posting may contravene the Race Discrimination Ordinance, or be directed towards another employee. Such actions may be prohibited in the company’s social media policy.
There is no doubt that use of social media has become part of our daily lives. New legal and operational issues will continue to arise. In the case of the employee described in our hypothetical example above, case law from other jurisdictions suggests no easy answer. The law in this area is still developing. Decisions from other jurisdictions are informative. Employers and staff look forward to judicial consideration of this issue.
Fiona Loughrey has headed Simmons & Simmons’ award-winning China employment group since 1999. Sarah Berkeley has extensive experience on advising on employment and discrimination issues, and has worked at the firm since 2001.
The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.