It has been brought to our attention that an employee has posted inappropriate content online and we are concerned about the impact this may have on our organisation. What can we address this?

While there are many positive benefits to social media for employers and employees alike, certain features can cause significant problems when it is used in a manner that can affect an organisation’s reputation and best interests. It is important that employers have a plan in place for what to do if an employee publishes inappropriate content online which may impact on the organisation as sometimes the lines between right and wrong are not clear cut when it comes to online behaviour. An effective social media policy in addition to staff training is the best way to give clear guidelines on how employees should and should not communicate on social media platforms with regard to their employer and avoid inappropriate social media behaviour from happening in the first place. The social media policy should make it clear that inappropriate use of social media may result in disciplinary action up to and including dismissal.

The first issue to consider in this situation here is the actual impact of the social media content on the organisation’s reputation and determine whether there is a connection between the communication and the workplace. Employers should also give consideration to the reach of that communication and whether the posts were shared publicly or privately, for example a negative comment published openly on a social medial platform with public access will have a far greater impact on the organisation from a reputational perspective than a message sent privately from an employee to a friend. If the content posted on social media constitutes defamation, contains a disclosure of confidential information, unlawful discrimination and/or bullying and harassment then the employer should treat any improper use of social media as it would any other type of misconduct. An employer should conduct an investigation and consider suspension or other precautionary action followed by disciplinary action if appropriate. Any sanction must be proportionate and fair, taking into account the actual or potential impact of the inappropriate content on the organisation.

Employers should have regard to a recent decision by the Workplace Relations Commission (‘WRC’) which found that the dismissal of an employee, for posting a YouTube video referring to ethnic minorities and containing the ‘N’ word on a workplace forum, was unfair. In this case, there had been an incident on 30 April 2020 during which the employee Mr Rykov posted a comment on an internal social media platform in respect to the promotion of some events by the employer’s Pride Connect Group. The comment was removed in line with the employer’s policy and there was no formal warning, or any sanction issued to Mr Ryvok regarding this incident. On 4 June 2020, Mr Rykov posted a video on a workplace Microsoft Teams group which had been set up during the pandemic to encourage team members to have some fun. His team leader saw the video and informed Mr Rykov that the video was offensive and asked him to remove it which was done. Mr Rykov was suspended pending an investigation. At a disciplinary hearing on 10 June 2020, Mr Rykov said that he did not see the video as racist, but he accepted that others might find it racist and acknowledged that he failed to see that. On 19 June 2020, Mr Rykov was advised that the decision had been made to dismiss him for gross misconduct. Mr Rykov appealed the decision on 23 June 2020 and the appeal was conducted by way of a review of the papers and not by way of hearing. The appeals person upheld the original decision to dismiss Mr Rykov and outlined the reasons as follows:

•  the material posted was extremely derogatory and racially discriminatory;
• the risk of posting similar material in the future;
• the incident on 30/04/2020; and
•  the duty of care to protect employees against possible discriminatory or harmful situations.

The Adjudication Officer had regard to the fact that Mr Rykov did not have a proper opportunity at the appeals process to state his case and put his views across and found that the process followed in reaching the decision to dismiss Mr Rykov was flawed and unfair. The Adjudication Officer also found that Mr Rykov contributed substantially to his dismissal by posting the video on the employer’s communication platforms. Mr Rykov was awarded compensation in the amount of €6,500 and the WRC decision refers to the quantum reflecting Mr Rykov’s contribution to the dismissal.

While it is clear that an employer has the right to discipline an employee for social media use, it is essential that any disciplinary process be conducted in line with fair procedures and best practice.