Should firms fire staff for their private social media activity?

Yes

“Reputational damage can spread very quickly and easily online”
(Daniel Piddington)

Most people think that they should be able to say what-ever they want on their private social media accounts. But if an employer can’t take action against an employee’s social media comments, there are consequences for the business. Reputational damage can spread very quickly and easily online, without any fact-checking. Employers need to to safeguard againstsich gegen etw. absichernsafeguard against breach of confidentialityVerschwiegenheitsverletzungbreaches of confidentiality, libelVerleumdunglibel, racism, bullyingMobbingbullying or harassmentBelästigungharassment of colleagues on social networking sites. 

There are many reasons why it would be right for employers to be able to to monitor sb.jmdn. kontrollierenmonitor and to dismiss sb.jmdm. entlassendismiss staff for the Inappropriateunangemesseninappropriate use of social media, provided it is done transparently and fairly. As more businesses rely upon sales or promotion through digital platforms, it is increasingly common for individuals to link their personal accounts to those of their employer. Once they start posting negative content, it can be spread quickly and badly impact the whole business.

The right to dismiss for the inappropriate use of social media is even more important today, given the changes that have taken place over the past 12 months. The Covid-19 pandemic has seen a large increase in the number of people work remotelyim Homeoffice arbeitenworking remotely. Employers can easily restrict access to social media on their premisesRäumlichkeiten; Geschäfts-, Büroräumepremises. But once staff are working remotely, they can access social networking platforms during office hours, affect sth.etw. beeinträchtigenaffecting productivity and use of time.

Dismissal is still relatively rare. Most companies value the resource that their staff represent. There are safeguards to ensure that an employee does not receive unfair or disproportionateunverhältnismäßigdisproportionate sanctions for personal social media activity. Employers must make sure that they have proper GDPR (general data protection regulation)DSGVO (Datenschutz-Grundverordnung)GDPR, IT and social media policies, and explain their rationaleGrundprinzip(ien)rationale and potential sanctions. There needs to be proper evidenceBeweisevidence-based decision-making and a fair disciplinary process. The focus for most employers is on behaviour that to break sth. downetw. zerlegen; hier: zerstörenbreaks down the trust and confidence between them and the employee. There’s a general rule for social media: think before you hit “send”auf „senden“ klickenhit “send”.

Daniel Piddington, employment barrister, College Chambers

No

“You can’t gag an employee from all private expression”
(Damian Kelly)

Social media is a necessity in business communication. But employers can be oversensitive to it, especially with marketing teams to scan sth.etw. (schnell) durchsuchenscanning everything that goes across social media. If staff are to host sth.etw. ausrichten; hier: anbietenhosting and posting material online, it can conflict with an organization’s marketing strategy and message. But when dealing with a private context, employers should be very careful before dismissing an employee. 

Employees have the right to freedom of expression under
Article 10 of the European Convention on Human Rights, and a right to a private life under Article 8. These are an important part of a democratic society. They are not absolute rights, however, and can be to curtail sth.etw. beschneidencurtailed in certain situations through a contract of employment. 

There can be a grey area between what an individual feels is freedom of expression and what the employer believes is appropriate. It’s about what is necessary and proportionate. You can’t to gag sb.jmdm. knebeln, mundtot machengag an employee from all private expression. Otherwise, we’d be living in a police state.

Given the increased numbers of people now working from home, people’s work-life balance has shifted towards their private life. How far should an employer have an overview of social media posts within this context? In recent years, a large number of employees have been disciplined for their social media activity.

In terms of proportionality, it is interesting that employers are freely checking and profiling members of staff. surveillanceÜberwachungSurveillance of their staff’s social media activity just seems to be accepted. It’s a dangerous slopeHang; hier: Terrainslope to be on because it impacts trust and confidence. That’s why it’s essential to have a social media policy, and proper training.

Disciplinary action for social media comments needs to be restricted to work-related matters. Also, these are not criminal cases, where evidence has to be tested beyond reasonable doubt, but on the balance of probabilities. But it’s wrong of employers to rush towards dismissal without looking at the full evidence about the damage that may or may not have been caused.

Damian Kelly, national head of employment law, Simpson Millar