Angus Maclean and Adam Hugill talk about the use of social media and the impact that it can have in the workplace. Adam highlights some examples which ended up creating a substantial amount of trouble for the employee.
They also discuss an employer’s ability to monitor employees’ social media accounts and data privacy regulations in Hong Kong. Adam wraps up pointing out real-life issues that employers and employees should pay attention to avoid potential embarrassment or disputes.
Show Notes
01:02 Social media as a widespread phenomenon
02:00 Justine Sacco case
03:09 Rachel Burns case
05:03 Dismissal – including for gross misconduct
06:36 Monitoring employees’ social media accounts
07:33 The 3 As: Assessment – Alternative – Accountability
08:16 The 3 Cs: Clarity – Communication – Control
09:20 Tips for employees
10:04 Tips for employers
TRANSCRIPT
Welcome to Series 3 of The HIP Talks podcast: a series of discussions on legal issues hosted by Hugill & Ip Solicitors. The firm provides high quality legal services with integrity, professionalism and respect for its clients and the community. An outstanding team of lawyers who have achieved exceptional results and recognition in the areas of Dispute Resolution – Corporate & Commercial – Private Client – Family – Employment & Business Immigration and Data Privacy.
Angus Maclean 00:29
You will be hard pressed these days to find someone who does not use some form of social media. How one presents himself on social media can have damaging effects, including consequences relating to the workplace. My name is Angus McLean, and I’m here today with Adam Hugill, who is a partner specializing in employment law at Hugill & Ip. Today, we will be discussing social media and employment from a legal perspective. Good morning, Adam.
Adam Hugill 00:54
Good morning, Angus.
Angus Maclean 00:55
So, I guess first off, we’ll just ask the obvious question, why does social media matter in an employment context?
Adam Hugill 01:02
I think as you said, you’re hard pressed to find somebody who’s not involved in social media, somewhere or somehow along the line. In the employment context, it really does go to every aspect to the employment relationship. Many employers will use social media to hire employees. Many employers will check social media when hiring employees to do sort of informal background checks. During the course of the employment, employees will use social media possibly even commenting about their fellow colleagues or workplace. And employers will encourage employees to use social media to promote their products.
Adam Hugill 01:35
There’s also the argument that employers could be vicariously liable for the posts made by their employees. Although to the best of my knowledge, there are no cases in Hong Kong that established this. And then perhaps worse are the horror stories you see where somebody has done something very dumb on social media that ultimately led to their downfall and their termination from employment.
Angus Maclean 01:55
Yeah. I think I’ve heard of a few of these. But do you think you can elaborate on some of them for me?
Adam Hugill 02:00
Okay, there’s the very famous case of Justine Sacco. It’s an American case. And essentially, this lady got on a series of flights to South Africa and whilst boarding each of the flights, she made increasingly dumb jokes, which were blatantly racist. And so, her first post was, “Weird German dude, you’re in first class, it’s 2014, get some deodorant. In a monologue as I inhale your BO, thank God for pharmaceuticals”. She then made another bad joke saying, “chilled cucumber sandwiches, bad teeth, back in London”. And then the thing that really set the whole internet alight was the post that she made saying, “going to Africa, hope I don’t get AIDS. Just kidding. I’m white”. And she actually did that post as she was boarding the flight to South Africa and so she was on a plane for 11 hours with no access to her phone or social media. And pretty much as she landed, she discovered that she was trending world number one on Twitter. And she was instantly dismissed for essentially what was a very bad and dumb joke.
Adam Hugill 03:09
We can contrast that with another case, which is a UK case, involving a lady called Rachel Burns. Now, Rachel was very open and honest about what she did. And it all seemed very innocent. She was working at a nursing home, and she had some photos taken of herself at a singing dance event held with some of the residents of the home. And she posted one of those photos on her Facebook thinking nothing of it. The home was run by one of the Borough Councils in the UK and they took massive offence at this picture. They were very upset that she posted a picture relating to her workplace on Facebook. One of the residents was shown in the picture – it wasn’t just her but one of the nursing home residents was there. And one of the residents was also a friend of hers on Facebook. And the council deemed that this is inappropriate behavior. They instantly suspended her. And then she admitted to everything. She didn’t see that she had done anything wrong, perhaps a little bit misguided, but nothing wrong. And the council took the decision that she either accepts a demotion, or she’s dismissed. And they only gave her two days to make a decision and then they dismissed her. She actually took her case to the Labour Tribunal and fought it and ultimately won. But the amount of money she received was essentially negligible and so for one dumb post, she lost her job, had to spend two years litigating and got very little out of it at the end of the day.
Angus Maclean 04:37
Okay, so thanks for that. Those are some international examples. So, I guess generally speaking in Hong Kong, is it lawful for an employer to dismiss an employee for a social media post?
Adam Hugill 04:48
It is, because Hong Kong has very little protection from dismissal anyway. And so, it is in most circumstances very easy to terminate an employee provided they’re not protected due to being pregnant on sick leave, etc.
Adam Hugill 05:03
I suppose the bigger question is would it be appropriate to dismiss that employee for gross misconduct, and so immediately terminate them without giving them any notice pay? And the answer to that would be yes, provided that the misconduct was suitably severe. Now, if it was a racist joke, as bad as the one that we referred to, in the Justine Sacco case, then yes, I think people could be justified for summarily dismissing an employee in those circumstances. If it’s of a lesser severity, then I think it will be difficult for most employers to justify gross misconduct as a result of somebody’s social media post. This being said, if the employee has been warned about it, and given written warnings, notice, etc., and continues to do something which is wrong, then it could be used to justify dismissal. I’m aware of one case where a teacher – a kindergarten teacher – had his Instagram open for everyone to see and he posted photos of himself in quite a state of undress. Some photos from behind, he was totally naked. And actually, the employees – sorry the parents of (the children attending) the school – found the post and complained to the school saying that they’re unhappy that their teacher is publicly on Instagram in a state of undress. And this resulted in the employee receiving a number of warnings, essentially asking him to make his Instagram private or to take down certain pictures, which he refused to do. And that then led to the termination of his employment.
Angus Maclean 06:36
Okay. But I guess what extent are the employers allowed to monitor an employee’s social media account?
Adam Hugill 06:44
Employers are entitled to monitor employees, but they must do so in a lawful manner. And this is governed by the Personal Data (Privacy) Ordinance (Cap. 486). The Privacy Commissioner has also set out specific guidelines on how to monitor employees or best practices for monitoring employees. And so, the first thing that the guidelines would have visited they get consent from the employee. Now, the easiest way to get consent would be to make it part of the employment contract. And so most employment contracts would have a Personal Information Collection Statement, or something similar, either within the contract or as an appendix. And within that, the company can grant itself the rights to essentially monitor social media.
Angus Maclean 07:26
Okay, so what are the main things an employer should consider if they are thinking of undertaking social media monitoring of their employees?
Adam Hugill 07:33
Okay, the Privacy Commissioner’s guidelines refer to the three As and the three Cs. So, the three As are Assessment, Alternatives and Accountability. So, for assessment, when assessing the risk of employee’s monitoring, you’ve got to seek what you want to manage and the key question that the employer wants to answer, and they must be doing it in a way which is justified and reasonably fair. Alternatives is relatively self-explanatory, which is what alternative could the employer utilize, which is less intrusive, when monitoring the employee and Accountability is that the employer has to be prepared to account to the employee for the data that is accessed and explain why it’s relevant.
Adam Hugill 08:16
The three Cs are Clarity, Communication and Control. And these essentially relate to what we would advise employers to put into a policy explaining social media. So, they would need to be clear as to the circumstances under which they would monitor an employee’s social media. They should communicate to the employees the nature and the reasons for the monitoring. And then they need to ensure and safeguard the information that’s been retrieved. And so, the usual data privacy principles would apply to this, which is that data should not be widely disseminated, it should be held and be true and accurate, there should be controls over who can exercise, sorry, who can access the data, and the data will be deleted or destroyed when it’s no longer of any use.
Angus Maclean 09:03
Great, thank you. So, you’ve given us a good overview of some of the law and the guidelines that employers and employees should consider, but is there any general practical advice you could give with regards to employers and employees when it comes to social media posting and employment considerations?
Adam Hugill 09:20
For employees as an employee, I would be very cautious, and I would seek confirmation from my employer as to what the employer will and will not accept as being reasonable. And so, if you’re working for a brand name employer, they spend a lot of money carefully managing their brand, they may very much welcome social media posts about their brand. But that obviously they want to monitor what’s being said in the messaging and so organizations like these almost certainly will have in place very clear and precise guidelines as to what the employee can and cannot do. And also that if the employee is doing things in their own name, that they make it very clear that it’s in their own name. Usually posts not wearing uniforms and the like, it would be part of a policy.
Adam Hugill 10:04
For employers, if you don’t put clear guidelines in place, employees will do whatever they think is appropriate and you never know with social media where that could end up, as it would be worthwhile preparing a detailed and thorough social media policy, including what you do expect employees to be able to do and say about your business, or whether there’s absolute ban on talking about your business entirely. If employees are in breach of the social media policy, then it would be incumbent on the employer to undertake an investigation and collect all of the facts. And I would say for cases like this not to overreact, because quite often, it’s a huge perception that something got horribly wrong, and it’s possibly not that serious and so conduct a proper investigation, speak to the employee about it, see whether the post can be taken down or measures can be put in place to correct things. And if that doesn’t work, then yes, termination is something that you’re able to consider. And as I said before, the severity of the breach would dictate whether or not you could justify dismissing for gross misconduct.
Angus Maclean 11:10
Thank you, Adam. Clearly there are a lot of considerations that employees and employers should bear in mind when it comes to social media posts.
Adam Hugill 11:17
Certainly, it can be quite a minefield.
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