Understanding Workplace Social Media Privacy

Most people deem social media sites such as Facebook and Twitter part of their daily lifestyle. Numerous articles and videos can go viral in just a few hours. Sometimes, we find disgruntled employees expressing their frustrations about their workplace or employers. 

Do employees indeed have the right to privacy in the office? They wish to work in a safe place without the fear of being monitored by their bosses, whereas employers have the right to protect themselves against unjust consequences that would harm their business. 

 

Social media usage at work and the issue of privacy

There's a term in an employment contract known as the duty to maintain mutual trust and confidence. Both employees and employers should respect the trust and confidence in the employment relationship. They must avoid acting in any way that will damage the relationship. 

Those who support privacy rights use the implied term of mutual trust and confidence to argue that employers are duty-bound in law in respecting their employees' privacy.

The popularity of social media has caused extensive usage of it at the workplace. According to the implied term of mutual trust and confidence, employers are recommended not to engage in excessive monitoring of employees without any justifiable reason. The privacy issue becomes more complicated when the employees need to spend some of their time outside the workplace or work from home. 

Though the law recognises the right to privacy at the workplace, employers still have a right to use fair means to monitor the employees to avoid the abuse of workplace facilities or to enforce discipline. There are a few situations where an employer has the right to intervene with the employee's privacy at work. 

 

The employee's excessive usage of social media at work

If the employer found the employee to have excessively used the company's equipment to access social media, the employer has the right to monitor them. 

The employment contract between the employer and the employee is based on the fiduciary relationship of trust and confidence rested upon the employee. If enough proof of a breach of the fiduciary relationship is found, the employee's conduct may amount to misconduct.

Therefore, if the employee has used the employer's equipment excessively to access social media, it is considered as a workplace misconduct.

It is all about the balance between the employers' and employees' rights.

What the Industrial Court says

Based on an Industrial Court case, an employee was charged for using the employer's telephone facilities to make various and long personal calls to another employee. The other employee was charged for being engaged in personal communication with Employee A. The employer terminated both employees for the misuse of its telephone facilities. Having examined that the employees' conduct would have disrupted their daily responsibilities, the Court believed that the employer had acted justifiably in terminating the employees and held that:

"Both the claimants were employed to work for the company and to be productive. It was never meant that for a substantial period of their office hours they could use that for personal calls and resulting in the reduction of productivity and efficiency in the office."

Suppose we apply the same line of argument against an employee who overused the company's equipment for social media purposes to the point that it affects their performance at work. In that case, it is clear the employer has the right to monitor their social media usage at work and take necessary action.

 

The misuse of social media affecting the employer's reputation or interest

If it can be proven that an employee had posted a statement on social media that affects the employer's reputation, then the employer would be justified to take action against the employee. 

The Employment Tribunal in the United Kingdom upheld the termination of an employee who posted derogatory remarks against employees and customers on her Facebook page during working hours. 

In Malaysia, the Industrial Court would likely adopt a similar approach in deciding whether an employee's actions in posting remarks on Facebook can constitute a just cause and reason for dismissal. 

Additionally, this is an authoritative text by B. R. Ghaiye that works as a guide to the Industrial Court:

"… it would be regarded as an act of misconduct for which an employer may punish by dismissal even if it occurs outside the factory or place of business of the employer, if the act:

(1) is inconsistent with the fulfilment of the express or implied conditions of service or 

(2) is directly linked with the general relationship of employer and employee or 

(3) has a direct connection with the contentments or comfort of the men at work or 

(4) has a material bearing on the smooth and efficient working of the concern."

Though an employee may have the right to post their private comments on social media, such remarks must not affect the employer's reputation, even if the post may only be circulated within the employee's inner circle of friends. 

If the employer's reputation or business is materially affected because of an employee's social media posting, they would, arguably, be justified in taking action. 

 

Employees do have the right to privacy, but it is not without limits. The right to privacy must be balanced with the employer's right to protect its reputation and ensure its staff's productivity.

 

Source: MyFreelys Academy

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