Stupid twits

Not so long ago, footage of city worker Tom Osborne seemingly snorting cocaine on the Northern Line went viral.

In the film, shot on a mobile phone by a fellow passenger, the young worker offers to share the suspicious substance before jumping up in the air and making animal noises.

Not surprisingly, many of the comments to this story suggested he would soon lose his job. And sure enough, a statement from the company said that it would be taking action within its disciplinary policy.

Given that Osborne has since been arrested on suspicion of offering to supply Class A drugs, it’s fair to assume that the outcome vis-à-vis the job isn’t going to be a good one.

Most would probably agree that this was idiotic behaviour at best. Disciplinary action becomes a fairly cut and dry affair too once an employee engages in illegal activity. But at the same time, the example throws up some difficult questions for employers and HR teams.

More staff, especially among the younger generation, may do, or post something, on social media that doesn’t reflect well on a company’s brand – from sharing pictures of drunken behaviour out of hours to broadcasting unsavoury personal opinions.

So when is disciplinary action appropriate, assuming companies don’t want to sack everyone who has a silly moment online? And how do companies avoid creating a kind of surveillance culture that destroys employee morale?

The case for caution

Take the recent case of Qatar Airways. Airline boss Rossen Dimitrov decided to express his disappointment in the behaviour of a member of the cabin crew, by emailing the entire workforce a picture of her slumped in a doorway, apparently sleeping off a drinking session.

The airline may have particularly high expectations of staff, and the picture was taken outside staff quarters.

But, still, most would balk at the idea of publicly shaming employees in this way. According to Dimitrov’s email, this employee had been with the company for no fewer than nine years – what a way to have your loyalty repaid.

Even the Tom Osborne case should make us feel uneasy. The film may be damning, but it’s still not direct evidence that he was in fact taking cocaine rather than engaging in some particularly stupid attention-seeking stunt with a bag of bicarb of soda.

But there seems to be little room for reasonable doubt in the trials that are now conducted in the court of public opinion. And the danger is that employers may well be tempted to follow the herd rather than exercise restraint.

The legal landscape

That’s despite the fact that the legal position on these issues appears to urge caution.

‘Employers need to take care not to have knee-jerk reactions to employees posting inappropriate or even offensive material on their personal social media accounts,’ says Naureen Hussain, a partner at Clarkslegal LLP.

‘Employees have a right to privacy [enshrined in Article 8 of the European Convention of Human Rights] and employers must jump a high hurdle to establish that an employee’s activities in their personal life, including on social media, sufficiently impacts on their employment to avoid unfair dismissal claims,’ she says.

Companies can’t act against an employee, explains Hussain, simply by claiming reputational damage or breach of trust and confidence, even if the employee refers to their job or employer on their posting and has colleagues connected to their social media account.

‘The employer has to show that it could reasonably be perceived by the outside world that the employees’ comments were being attributed to the employer or were intended to offend other employees,’ she adds.

In practice, however, it’s difficult to overlook behaviour that has gone public.

‘Media audiences can be wider than one would expect; an inappropriate post could go ‘viral’ within a very short space of time,’ says Lorraine Foster, HR Advisor at Lotus HR.

And there are now more examples of employers taking action against staff in cases that don’t quite seem to fit the legal requirements for dismissal stated above.

In the book, So You’ve Been Publicly Shamed, author Jon Ronson explores several examples of social media postings that have gone horribly wrong. There was Justine Sacco, who made a joke in bad taste about Africa and Aids and lost her job in PR. Also, Lindsey Stone who was fired from her job in a care home after her friend posted a picture of the two of them seemingly mocking a sign in Arlington National Cemetery.

They may be examples of particularly stupid, even offensive, behaviour. But there were no references to employers here. No bad-mouthing of colleagues or brand.

Both were made unemployed nonetheless, regardless of state laws intended to protect employees from discrimination for out-of-hours conduct.

The importance of policy

For both Lorraine Foster and Naureen Hussain, the obvious step for employers is to formulate and communicate a clear social media policy.

‘The purpose of such policy is to communicate the expected standards of conduct and the company’s procedure for dealing with instances considered to be below par conduct,’ says Foster. She specifically advises that polices should:

1. Outline employee responsibilities relating to social media use.
2. Include examples of scenarios that may be deemed unacceptable.
3. Describe the process that the company will follow for content posted which is deemed in breach of the policy.

‘It is further sensible to remind employees to assume that everything can be traced back to them personally and that they are representatives of the organisation in and outside of work,’ she adds.

A teacher setting up an ‘anonymous’ profile to show off their pole-dancing skills would be an obvious danger zone.

A delicate balance

But there is surely a risk here, too. Many companies have fought long to develop employee-friendly cultures that genuinely recognise the importance of people enjoying a life both in and out of work.

Policies will have to tread a very fine line between protecting a company’s reputation and allowing for a private life.

For sure, employees have a duty of care too. As Foster says, individuals should routinely question the appropriateness of a social post, and avoid publishing anything that they wouldn’t want to be seen by colleagues, family or friends.

At the same time though, employers need to recognise that most people do stupid things now and then. Punitive action may be necessary on occasion but HR support may in fact be more vital – particularly when it comes to the emotional fall-out that comes with an unexpected social media backlash.

So even with social media policies in place, this is a particularly tricky and fast-evolving issue for HR teams.

Relatively banal comments or behaviour can rapidly escalate, taking on a life of their own in a world of mob rule. The employee may be as much a victim as a perpetrator.

Employers may be keen to put a lid on the issue but not without thoroughly investigating the circumstances first.

It doesn’t help that the law is slow. It has barely kept up with the most basic challenges thrown up by social media. For employers, and HR teams, it seems fair to say that the work to fairly address employment issues thrown up by social media has only just begun.

About the author

Caroline Poynton

Caroline is a journalist and editor with years of experience writing on corporate communications for a variety of business publications. She has been the editor of a number of trade magazines focusing on business management and is the author of several in-depth reports analysing trends in HR.