– require the employee not to post any derogatory or damaging comments about their workplace, colleagues, clients or customers
Discipline and Dismissal
If an employee breaches a social media policy normal disciplinary procedures should be followed. These should include notifying the employee of the concerns held, providing an opportunity for the employee to explain their actions and (if necessary) offering a support person to be present where termination of employment is a possibility. It is also important that any social media policy is monitored and enforced. An employer may be considered to be acting in a discriminatory manner if some but not other employees are disciplined for similar online activities.
Even in the absence of a social media policy employees are expected to refrain from deliberately or recklessly damaging their employer’s business. All employment contracts have an implied term to act in good faith. This term applies to the employee and the employer equally. If an employee posts information or comments online with the intent of causing harm to their employer’s reputation they will have breached their contract of employment in a way that could warrant immediate dismissal.
Claiming Damages from Employees
Generally, employees cannot be held liable for negligence or carelessness that causes their employer loss. Similarly, a breach of a policy is unlikely to be sufficient for an employer to successfully make out a claim for damages against an employee. However, where an employee has deliberately breached an explicit term of their employment contract and losses result the employee could be held personally liable.
Court action can be taken even where the employee had already resigned or been terminated when they posted damaging information on social networks. An employer may rely on clauses in the employment contract that survive termination (such as confidentiality or restraint of trade) to prove a breach of contract. The implied term of good faith may also survive beyond the period of employment.
Senior employees have a greater potential to do damage to their employer, and will be more readily held to account for breaches of their employment contract. Courts recognise that senior executives receive high remuneration for their services to an employer and are intrinsically involved in maintaining their employer’s reputation. Employers will find it easier to enforce contractual limitations on the online activities of senior employees – both during their employment and for a reasonable period after it ends.
Tips for Employers
– Publish a clear social media policy for your employees to follow.
– Enforce disciplinary action where social media is misused – a policy that is not enforced loses currency and clout.
– Include explicit terms in employment contracts regarding the use of social media and any expectations that extendbeyond the period of employment.
– Where an employee is being terminated or resigning consider whether a Deed of Release can be negotiated, and if so include:
– requirements for mutual non-disparagement,
– specific restraints of trade, and
– agreement in relation to what announcements regarding their departure from the company can be made on social media and when.
