Andrew McConnell: Careless talk online may end up costing you your job

THERE was a time when whingeing about your boss was the stuff of whispered conversations with like-minded colleagues around the office water cooler.

Barring the possibility that your employer strolled within earshot, the choice remarks – usually delivered sotto voce and accompanied by conspiratorial giggling – were unlikely to lead to any serious repercussions and would almost certainly not go beyond the four walls of the office.

No longer. These days, thanks to technological advances and the proliferation of social media, a rash e-mail, tweet or “private” posting on Facebook can be shared with thousands of people within minutes. If the content is suitably salacious, it may even go global.

While there may be some comfort in having brought smiles to the faces of fellow office workers from Shetland to Shanghai, the potential repercussions are no laughing matter. Setting aside the reputational damage to the company, an employee who fires off an intemperate comment in the cyber age may set themselves on a fast track to disciplinary action and, ultimately, dismissal.

Recent employment tribunal decisions have underscored the message that employees should avoid venting frustrations about their work online – a person’s social media profile on websites such as Facebook is not as private as they might think.

Often employers can take disciplinary action legitimately where they discover posts that they deem inappropriate on an employee’s personal social media sites. Many people take the attitude that their use of social media sites has nothing to do with their working life. After all, they post outside the office and their comments are restricted to those who they accept as friends.

Of course, the key difference between venting work frustrations online and a one-off verbal conversation is that you have much less control over how an online comment is going to be passed on. Post a complaint about your employer on a site such as Facebook and you have no control over whether your friends are going to forward it on to others.

Even where comments are posted purely between friends and privacy settings are at the highest possible level, an employment tribunal may well find that an employer is still justified in using this material to dismiss an employee where that employer reasonably believes that such a comment amounts to misconduct.

This happened recently in a case where an Apple employee was found to have been fairly dismissed for posting derogatory comments about his work and his iPhone on Facebook.

On a very basic level, it is surprising how many employees continue to be caught red-handed pulling a sickie. Typically, this involves calling off work with a bad back and then tweeting about their day off drinking with mates or posting pictures on Facebook of themselves enjoying a game of five-a-side. Again, such behaviour reflects a lack of understanding of the connections that can be made between our use of social media and working lives.

It is risky for us to think of our “electronic” life as completely separate from our working lives. The simple rule to follow is that employees should not post anything on a social media site that might risk confidential information being released or that might cause reputational damage to their employer, their employer’s brand or clients.

Everyone should also be aware that some employers do look at potential candidates’ social media sites during a recruitment process.

However, before this all starts to sound a bit 1984, employers must avoid knee-jerk reactions when disciplining employees for social media misuse. The key consideration to bear in mind is whether the comments made pose an actual commercial or reputational risk to the employer. Failure to take into account and balance all of the relevant factors may lead to a finding of unfair dismissal.

Employers should try to encourage better understanding among their workforces about what they consider to be acceptable and unacceptable use of social media. Spelling this out by publishing guidelines or introducing a social media policy is essential. The bottom line is that careless social media talk can cost jobs. Employees would be well advised to think twice before posting a comment about the Christmas party high jinks…

• Andrew McConnell, associate in the employment team of legal firm Brodies LLP