The Perils of Social Media

by Barry Walsh, Partner and Head of the Employment Team at McDowell Purcell.

A senior US wildlife official resigned in recent weeks after an outcry following online posting of his hunting photographs which were contrary to the values of his employers’ organisation.

The Idaho Fish and Game Commission member failed to “exercise good judgment” when sharing photos of animals he killed while on a hunt in Africa. One photograph in particular which caused outrage showed him posing with a family of dead baboons he had killed. Following calls for his resignation from Commission members and other senior officials, the employee resigned acknowledging his “poor judgments” and that he did not “display an appropriate level of sportsmanship and respect for the animals”.

While perhaps an extreme example, the case highlights the ongoing blurring of lines between private activities and a person’s employment.

Not all employees go quietly after misjudged online activity. Closer to home, there are plenty of examples of cases where employees have been dismissed for online activity which might have brought their employer into disrepute.

In Toland v Marks & Spencer an employee dismissed after social media conversations between employees concerning a manager in a store was awarded €18,000 even though the EAT agreed that she had contributed to her dismissal by “careless misuse of a social networking site”. In Walker v Bausch & Lomb an employee was dismissed for posting a (false) message on the company’s intranet that “500 jobs to be gone at the Waterford plant”. He also succeeded in an unfair dismissal case.

In Brown v Mountainview Community Drugs Team, an employee was dismissed for after he uploaded a holiday photograph to Facebook showing him “in a violent and threatening pose” with a fake gun but, again, succeeded in an unfair dismissal case as the dismissal was held to be disproportionate.

It is possible for employers to defend such cases. As with many misconduct situations, the employer must be able to show that employees were on notice of prohibited activity. This can be achieved with a clearly communicated Social Media policy. Disciplinary procedures must also be as meticulous as possible. However, before considering a disciplinary sanction, an employer should consider the actual impact of the employee communication and whether there is damage to employer’s reputation or, alternatively, whether it owes a duty to other employees as a result of the post. As with any disciplinary action, it must be proportionate.

For example, PJF Insurances’ dismissal of an employee for personally offensive comments on Facebook regarding a company director was upheld for constituting a significant breach of trust.

About the author
Barry Walsh is Partner and Head of the Employment Team at McDowell Purcell. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.

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