England cricketer Kevin Pietersen vented his anger on Twitter at not being selected in the England cricket squad to face Pakistan recently, he became the latest person to fall foul of his employer via social networking. After issuing an apology saying that the message was sent by mistake, he was handed an undisclosed fine from the England and Wales Cricket Board, but escaped further punishment. Others have not been so lucky.
Over recent years the use of social networking and media sites such as Facebook, YouTube and Twitter has grown significantly and more and more people are using these sites to post blogs, comments, photographs and videos about their daily lives. Consequently, employees’ private lives are becoming more public, and the line between working lives and private lives is becoming blurred. Employers are more regularly monitoring their employees’ online activities, both to protect the privacy of other employees and to prevent the employee from bringing the organisation into disrepute or breaching commercial confidentiality.
Many employees are unaware of the consequences that their online posts could have on their employment, thinking their behaviour outside working hours, on “private” websites is unconnected to their employment. However, acts of misconduct which occur on social media sites are no different from any other act of misconduct and if such activities are perceived to be sufficiently detrimental to their employer, this could count as gross misconduct and justify their dismissal.
Employers are naturally wary of employees’ use of social networking sites, as under anti-discrimination legislation they can be vicariously liable for the acts of their employees. Acts performed by an employee can be treated as having been done by the employer, even if it is done without the employer’s knowledge. Where, for example, an employee makes comments online about another employee, the employer may be liable regardless of when or where those comments were made.
While employers will no doubt be keen to monitor the activities of their staff, employees still have a right to a personal life and provided they do not breach reasonable conduct guidelines, employers should respect this. However, employers do need to respond to the potential for online activities to cross the line into misconduct territory by establishing clear standards of behaviour online. Employers should ensure they have a clear policy in place so that staff understand what is expected of them in their private lives both off and online.
The bottom line for employees is to recognise that what they post as their online status could adversely affect their employment status. However, as Generation Y are more likely to have online profiles, employers should be aware of the potential for indirect age discrimination claims if they monitor employees’ activities on social networking sites during their employment and dismiss them as a result of what they find, on the basis that such action would have a disproportionate effect on the younger employees in the workplace.