In short yes – with some considerations.
These days, with constant access to social media, out of hours conduct can ‘go viral’ and attract a wider range of negative publicity for both the employee and potentially an employer. The issue in these kinds of circumstances is whether the employer would have the right to take any action against the employee, with the broader issue being: when does out of hours conduct justify disciplinary action, which may include dismissal?
In most cases the employer’s rights will depend on the particular facts, including the employment contract, employment policies and the job requirements, out of hours conduct is more likely to attract and justify disciplinary action where the employee brings the employer into disrepute (or engages in action which has the potential to do so). This also applies where the employee is convicted or charged with a criminal offence – particularly where such a charge or conviction directly or indirectly prevents the employees from performing their duties.
As with all disciplinary matters the outcome depends on the individual incident, and, there’s the issue of the impact on the organisation’s interests by the employee’s conduct. The following factors will need to be considered:
- What is the potential impact of negative publicity?
- Could the employee’s actions harm relationships between the organisation and its clients, suppliers or sponsors?
- Could commercial arrangements with those parties be cancelled as a result?
- Could there be an impact on the organisation’s ability to source new customers, clients or sponsors?
While the actions or behaviour of an employee may not be related to work, the idea of bringing the employer into disrepute through the employee being well known or easily identified as an employee of the organisation have been relevant factors in recent cases. Put simply the outcome for the employee depends on impact their behaviour has on the employer.
Takeaways for employers;
- Ensure you have thorough policies in place, train your employees on them and most importantly – follow them
- If an issue arises, ensure you afford the employee in question procedural fairness
- Treat each case on its merits
Takeaways for employees;
- Strengthen your social media privacy settings
- If you are going to update your profile with your position & employer be VERY mindful of what you post on groups, or who you tag in your photo’s and status updates. Thanks to Facebooks’ algorithms your post can appear in the newsfeed of their friends list as well
- Be mindful of your conduct overall when outside of work, particularly when driving fleet vehicles, when in uniform, at work events or if you are well known around town as being associated with your employer
Read on below for more information including recent examples of cases to appear before Fair Work. To put in place clear and comprehensive policies regarding Social Media use, Bullying, Discrimination & Harassment and Code of Conduct contact The People & Culture Office today via email firstname.lastname@example.org