Employee privacy: comments made in a private capacity on social media sites or forums

May 13, 2011

Articles

With social media increasingly becoming an integral part of the daily lives of
thousands of people, one issue that employers face more often these days is that of
employees who bad-mouth their managers, clients, colleagues or the work
environment in general, on social media sites, such as Facebook and Twitter. Are
employers entitled to take disciplinary action against employees who do this?

It may be argued that, provided it is done in the employee’s own time and in a private
capacity, participation by employees on social media sites falls outside of the
employment relationship and that employers are barred from taking disciplinary
action against them. However, the line between private activities and the work
environment is sometimes a very thin one indeed, because just as the individual has
a right to privacy, so does an employer have the right to protect its business
interests. Because of this, employees are not free to do and say what they like when
they are away from work: employees who, e.g., make derogatory remarks about their
employer may, apart from possible civil liability, also be faced with legitimate
disciplinary action. This can happen, e.g., where the employee’s remarks have an
actual or potential negative impact on the employment relationship, workplace
relations, or the business of the employer in general. In other words, if the employer
can prove that there is a causal link between the employee’s conduct outside of the
work environment and, e.g., the employer’s business interests, the employee’s
conduct is no longer merely private but may lead to appropriate disciplinary
measures.

Although the list below is not exhaustive, the following are generally regarded as
creating a sufficient link entitling an employer to take disciplinary action:

  • the employee who made the negative remark(s) holds a position of trust within
    the employer’s business;
  • an employee bad-mouthed a client of the employer, with the result that the
    client took (or threatened to take) its business elsewhere;
  • the employee’s conduct created a serious breach of trust between the
    employee and the employer, or his/her colleagues (i.e. the employee’s
    comment(s) impacted negatively on the employment relationship); or
  • the employee’s statement(s) brought the company’s name into disrepute in the
    eyes of its customers or members of the public.

What employees communicate to the outside world, outside of the work environment
and outside of working hours, is therefore not necessarily a purely private matter as
many people believe the case to be. Our advice is that employers amend their
disciplinary policies to include a provision that any derogatory or negative statements
made by employees outside of the work environment, e.g., such as on social media
sites, could result in disciplinary action being instituted, which might, in appropriate
circumstances, also lead to dismissal. A word of caution however: employers should
keep in mind that some level of criticism of, and comment about, the employer or

work colleague is part and parcel of the employee’s right to privacy and freedom of
speech and that not every negative statement will necessarily lead to action. As is
the case with all instances of misconduct, each case must be evaluated on its own
merits before action is taken.

May 2011
Author: Elsabé Huysamen

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.

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