It’s a growing challenge for employers to navigate the line between personal and work life when an employee makes a post online which could affect the business image or reputation of their employer. In this First Tuesday article, we explore some of the commonly asked questions when faced with concerns about the adverse effects of an employee’s social media activity in relation to their employment workplace.

An employee is posting on social media during working hours. What do I do?

Realistically, most employees will have access to their personal phone while at work. However, if an employee is using their phone to post on social media during working hours, and it is interfering with their work, this may be a disciplinary issue to be investigated and/or addressed under the company disciplinary policy. An employer should refer to their social media policy, if one is in place, for the steps to take when an employee is misusing social media at work. Employers must remember that, if action is taken on foot of employees posting to social media while at work, or in a way which could jeopardise the reputation of the business, it must be proportionate and justified.  If a policy is not in place, the employer should begin by establishing what problems they are facing as a result of this use of social media during working hours. For example, is the employee potentially breaching confidentiality? Or perhaps there is a drop in productivity, due to this distraction. Perhaps the behaviour falls under another policy, such as the dignity at work policy or disciplinary policy.

I have a social media policy in place but am not sure if the behaviour breaches the policy.

A social media policy might point to specific instances where employee misuse of social media can result in disciplinary action. The result is that more casual social media use may not be caught by prescriptive social media policies. If so, rather than attempting to proceed to invoke disciplinary action against the employee, it may be advisable to issue a more general communication to all employees, setting out the expectations for social media conduct of employees. More than likely, the issue may not be limited to one employee, and building a culture where employees are aware of the expectations around personal device and social media use is the foundation preventing this behaviour.

What should a communication to employees include?

A communication to employees about the appropriate use of social media can include reminding employees of their obligations when using social media at work under the social media policy, if one is in place. It can also remind employees that they represent the company while they are at work, even while using their personal social media. Employees are personally responsible for content they publish on their social media accounts.

As well as sending a general communication to all employees advising on expectations for social media conduct for employees of the company, social media access can be removed from work systems. Doing this can minimise the risk of employees accessing sites on work devices. Training can be provided to employees, setting out clearly the parameters of social media use in the workplace.

I want to ensure that social media concerns can be robustly addressed in future. How can I do this?

As aspects of our work and personal lives are increasingly moving online, social media policies should be reviewed and broadened where necessary to include the standards expected of employees. A robust social media policy should also capture the consequences of conduct which interferes with the employee’s responsibilities. Employers should ensure that social media policies are fit for use and are drafted with existing company policies in mind.

Have there been any WRC decisions in respect of social media use and the workplace?

In Irene Glynn v Carlow Dental Centre ADJ-00043734, the WRC addressed the issue of online conduct of employees on social media websites, in particular where an employee posts controversial or offensive material online. However, it’s also instructive for employers who are unsure what next steps to take when an employee has posted such content online.

What happened in that case?

The Complainant was dismissed for gross misconduct by the Respondent, after making a post on Facebook which led to a member of the public making a complaint to the Respondent.

On 6 January 2023, the Respondent received a message from a member of the public which read: “Hello just so you know memebers [sic] of your staff have very extreme views when it comes to refugees coming into Ireland”. The message was accompanied by a screenshot of a comment left on a Facebook page for “Irish Supporters of Ukraine”, reading “Ireland is on its knees, Irish working people can’t afford heating or food yet refugees think it’s a free for all, stay fight for your country our grand parents fought against the English do the same”.

Following receipt of the message, the Respondent acted by requesting via text message that the Complainant remove the post. The Complainant was on sick leave at the time, and the Complainant’s partner, “Mr. X”, replied stating inter alia not to text the Complainant’s phone again.

Following a meeting of the two business owners of the Respondent on 9 January 2023, the decision was made to dismiss the Complainant on grounds of “serious and gross misconduct”. The basis for a finding of this level of misconduct was that the Respondent alleged the Complainant’s posting on Facebook amounted to hate speech under s2(1) of the Prohibition of Incitement to Hatred Act 1989, i.e. that the comments were “threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred”.

The Respondent, in reaching its decision to dismiss the Complainant, cited the gravity of the offence, the denial contained in the text message sent from Mr. X, and a lack of remorse and lack of co-operation from the Complainant. The Complainant was dismissed under the disciplinary policy of the Respondent, which provided that “[T]here are certain actions, which might impair the operations of the practice or jeopardise patient or employee safety or our reputation. Such violations could subject a staff member to dismissal, with or without notice”.

The Business and HR Manager of the Respondent had been aware that the Complainant posted strong negative views on immigrants on her private Facebook page, but in consideration of the employee’s privacy, had made the decision not to reprimand the Complainant.

What did the WRC decide?

The Adjudication Officer (AO) noted that the Respondent had to not only show that it had substantial grounds to dismiss the Complainant, but also that it followed fair and proper procedures in the lead up to the dismissal. The AO acknowledged that there are circumstances, “albeit rare”, which are so exceptional so as to dispose of the normal dismissal procedure. However, the Respondent didn’t follow any form of process prior to dismissal, didn’t conduct any form of investigation, or verify how the post was brought to its attention.The Complainant alleged she didn’t receive any prior notice of the complaint and was not given the opportunity to provide a defence before the dismissal was effected.

Although acknowledging that the right to freedom of expression is not absolute, the sanction of dismissal was held to be disproportionate; the reaction of the Respondent and following sanction of dismissal didn’t lie within the range of reasonable responses of a reasonable employer. In reaching this conclusion the AO had reference to the following factors:

• the Complainant had no prior disciplinary issues with the Respondent
• the Complainant was dismissed on foot of one online comment, made outside of working time
• the Respondent received an alert from one member of the public, who the Respondent assumed had traced a connection between the post, the Complainant’s Facebook account, and the Complainant’s place of employment
• no evidence was provided of whether or how the Complainant’s Facebook page was connected (directly or indirectly) to the Respondent’s business
• the Respondent did not have a dedicated social media policy in place to prohibit behaviour which might damage or affect the Respondent’s business interests or reputation
• the Complainant was not at any time advised to be mindful when making social media comments outside of work which could cause offence or damage the Respondent’s business image
• the Complainant was not given an opportunity to desist in the conduct which the Respondent alleged would bring its business into disrepute

The Complainant was awarded €8,552.31 (the equivalent of 17 week’s pay) compensation for the unfair dismissal, and €2,012.31 (the equivalent of four week’s pay) compensation for a failure to comply with s 4(2)(c) of the Minimum Notice and Terms of Employment Act 1973.

What are the key takeaways for employers in respect of employee’s use of social media where it overlaps with the workplace?

Having an up-to-date social media policy is essential for almost all businesses, to allow an employer to take effective action when issues of employee’s social media use arise. Employers should approach social media conduct issues reasonably and afford employees fair procedures in any investigation or disciplinary process conducted. Providing training for staff on expectations around social media conduct is a good idea where any concerns have come to light, or to pre-empt any issues among employees.

For any further guidance in relation to employee social media use, please contact Rachel-Maria Moore or a member of the Employment Practice Group.

Legal Island Training Resources for Your Staff

Social Media in the Workplace | eLearning Course

Are you responsible for overseeing the implementation of training for all employees in your organisation?

Legal Island’s Social Media in the Workplace eLearning course will help employees understand how the misuse of social media can impact them and their employers, sharing practical examples and useful tips on how to use social media responsibly.

Click here to view our eLearning course on social media in the workplace.