Employees are under the mistaken belief that what they do in their time away from the office, specifically on social media, is private and beyond the reach of their employer’s control.

They fail to consider that they could face disciplinary action for their online rants and comments. This could be fatal to their employment. The reality is that with the escalating use of social media during working hours as well as outside of company time, employees are regularly coming under fire for what they post online.

Before a Facebook update, Tweet, or Instagram post is uploaded, (frankly, even if you’re not the original poster, before you comment on anything online), employees must ask themselves, “does this post align with my company’s values?”

The question may seem strange, especially for social media users who are vigilant in ensuring their accounts have the highest privacy settings, but it becomes especially relevant when the name of your employer is linked to your account.

Even the most private social media accounts cannot escape the unforgiving screen shot (a snapshot of your post). A screen shot generally strikes silently without warning to the user (other than on Snapchat – but even then the notification does not alter the fact that your content is already in the possession of someone else).

Take for example the following scenario:

You called in sick on Tuesday morning and did not go to work. Instead you spent the day cuddled under your welcoming duvet, until you felt hungry and decided to go out to your favourite pub for lunch. The food was exceptionally insta-worthy and you could not resist a post and check-in.

What slipped your mind is that you have your colleagues doubling up as social media friends, with full access to what you post and your supervisor is on your friends list too.

This scenario increases the likelihood of your employer viewing your post online, challenging the veracity of your claimed ill health on that particular day. They may even question the validity of a medical certificate that you submit, on the basis of the post on social media.  In short, your insta-worthy post may be the catalyst into an investigation about your whereabouts on that day, which may culminate in a disciplinary hearing for misconduct, or a charge of dishonesty.

In employment law, dishonesty almost always carries with it a sanction of dismissal, if proven, because the act goes to the heart of the employment relationship. Dishonesty, the argument would go, is a breach of trust, resulting in the irreparable breakdown in the employment relationship, justifying a sanction of dismissal.

Let’s take another example:

Your company requires you to keep a log of all time spent during your work day. The IT department monitors your internet usage and you’re identified as an employee who spends 4 hours a day on various social media platforms. Further, you’re not meeting your required daily working hours.

The offence here has nothing to do with the content you’re posting – it’s the company time that you’re wasting online, instead of working. This, subject to a full investigation into the report by IT and into the purported misconduct, could result in a charge of misconduct in respect of a timekeeping offence. It could also amount to a charge of misuse and abuse of company resources (that is, the laptop and internet).

Simply put, employees are advised to be conscious of their posts, the timing of their posts and spending the work day online.

Other than the dishonesty example illustrated above, employees are further cautioned that any unsavoury comments posted online that could directly or indirectly negatively impact on their employers’ brand may also result in disciplinary action.

This also holds true of posts effected after hours, if the post impugns an employer’s values or causes or could potentially cause reputational damage. This includes hate speech, anything that promotes or incites violence, disparaging remarks about a person or a particular group of persons and so forth, given that no company would want their image being associated with.

For employers, it is recommended that an appropriate social media policy is put in place to regulate:

  • the nature of the posts employees are permitted to share or post
  • how long an employee may use social media during working hours (if at all) and
  • provide adequate training on what constitutes a post that may result in disciplinary action for misconduct

Employers are further advised to train and regularly remind employees on the content of their social media policy and emphasise the consequences of breaching these policies

Employees are advised to:

  • be conscientious about what they post online
  • be alive to their internal social media policies and the consequences of breach
  • think twice before commenting on a post – is it really worth it?
  • exercise the utmost honesty when dealing with the employer

This article was written by Sinal Govender and Lovanya Moodley,  Associates at Norton Rose Fulbright South Africa

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