Can an employer use social media posts as evidence of employee behaviour?Posted in : Seamus Says - Employment Law Discussion on 7 September 2018 Issues covered:
Q. Can employers rely on evidence obtained from social media to verify an employee's dishonest behaviour?
Scott: I don't know what the dishonest behaviour happens to be here, but something spotted on Facebook with contraband, or maybe their dishonesty is just that they say they were sick and they're not, they're skydiving, or whatever.
Seamus: Yeah. Well, I think, where the evidence available, you know, I think that it's available, and it can be used. I think that the employer needs to be careful about how they have obtained that evidence. And you know, the employee might automatically say, "Well, look, this is a breach of my privacy. This is my Facebook account. How is that being accessed?" But say, for instance they had a friend in work - not a very good friend of theirs, if they told on them, but, say they have a friend in work that has brought this to the attention of management and has provided them with the evidence, I think the employer is absolutely entitled to raise that with the employee. It's always a difficult one. Employers need to be careful with their sick leave and then they see the person.
Scott: Well, assuming it's not the kind of things we're chatting about where its stress and such like, where you would go off to get some kind of relief from that stress, and a holiday is a good thing. But if it's a physical thing, then it might be. I suppose, the other key thing here, going back to the Kepak case, is if you're going to use those social media posts, you should print them off. You should save them and print those off so you have the evidence if the person was doing something later on, if it comes to light.
Seamus: That's important, and it brings to mind, I had two cases, one in relation to where political comments were made in around July time a number of years ago, and the employer wanted to take disciplinary action against the employee, and the employee had very clearly on their Facebook page, linked in where they worked, and said, you know, the details of the employer. And on that basis, the employer was saying, "Well, look, they've made these comments here of a political nature, and they have brought our business into a potential disrepute."
I'd another one where there was a young lady, and she said there was pictures of illegal materials that were around her, and these photographs weren't taken in work. They weren't even taken during a time whenever she would have been in work. But again, on her Facebook page, she had linked the fact that she worked for this business, and it was very clear what the items were around her, and it was clear that, you know, given the type of business that my client was running and the type of client that would have used the business, that they wouldn't have been pleased at all in terms of these photographs. And they again, they took disciplinary action against the employee. But again, the key thing there was that it was on the Facebook page that this is where the employee worked.
Scott: So, Facebook is public, and if you link it with the workplace, then you can certainly take some kind of action.
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