Employee off-duty conduct – Social Media and Serious Misconduct
First Published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider), June 2019
From racist tweets to criticism via Facebook post, employees around the world have found themselves in hot water with their employers, even though the relevant conduct was not committed while on duty.
The following examples may sound familiar, as they were widely reported on:
- In 2013, PR Officer Justine Sacco tweeted “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white.” She then boarded an 11 hour flight to South Africa and by the time she landed her tweet had ‘gone viral’ and the company she worked for soon after released a statement confirming that it had “parted ways” with Ms. Sacco¹.
- In 2016, a Registered Nurse in Saskatchewan, Canada named Carolyn Strom was disciplined by the local Registered Nurses’ Association after being found guilty of professional misconduct after making a critical Facebook post. The Facebook post criticized a care home where the nurse’s grandfather was cared for. The issue was not that the nurse had vented her frustration, but it was how she did it. By posting the criticism on Facebook, changing the settings of the post so it was accessible by anyone and then tweeting a link to the post, the nurse had brought the entire profession in for criticism without first exhausting proper complaint procedures. The nurse was suspended from practice and fined USD26,000 (USD25,000 of which was towards the legal fees stemming from her unsuccessfully challenging the decision)².
- In 2019, radio personality Danny Baker was fired by the BBC over an alleged racist tweet of a photo with the Duke and Duchess of Sussex and their new baby. The image was of the couple holding hands with a suited chimpanzee with the caption: “Royal Baby leaves hospital.” He was fired the next day³.
These are just a few examples where employers took steps to discipline employees for off-duty social media conduct wherein the employer’s reputation was, by implication, put at risk. A common theme we find where we have advised on similar cases is that employees often do not know that what they say via their social media accounts may be held against them with their employer.
In Bermuda, the Employment Act 2000 speaks to employees being liable for termination if the serious misconduct has a detrimental effect on the employer’s business4. This would include a detrimental effect on an employer’s reputation.
Most employment contracts include the standard provision that an employee should not do anything that would bring the employer’s reputation into disrepute. However, we strongly encourage employers to update any policies to include specific guidance on social media and to make it clear to employees that what they tweet/post could cost them their job.
