Scrutiny placed on social media activity after hours

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The after-hours conduct of lawyers on social media will be a growing concern in 2015, as courts end employers increasingly recognise the impact this activity can have on workplace relationships and businesses themselves.
 
People + Culture Strategies partner and workplace law specialist Kathryn Dent said after hours conduct on social media was a standard part of social media policy for most sophisticated businesses – including law firms but was being increasingly enforced.
 
Dent said that, to some extent, there had been until now a reluctance among the management of businesses to pursue concerns with employee after hours social media activity. However, court decisions are changing that, leaving employees at risk.
 
“You can understand why employers would be reluctant to venture into after hours areas, but with the courts having started to sanction that, employers now have more liberty to actively protect their businesses and their workforce.”
 
Dent said questionable social media activity after hours can either impact relationships in the workplace, or damage businesses themselves directly.
 
The new anti-bullying jurisdiction has heightened the awareness of the workplace behavioral implications of social media activity, Dent said.
 
“The prevalence of workplace bullying can be facilitated by social media, and so I think we might see more bullying claims that are brought with regard to things said in the online world, as opposed to the actual physical workplace.”
 
A Fair Work Commission decision in Malcolm Pearson v Linfox Australia found that an employee’s repeated breaches of a social media policy was not unreasonable grounds for dismissal, with the employee’s freedom of speech concerns raised in the case found not to be relevant to the dismissal.
 
“Courts are now starting to catch up with technology, in recognising that social media can be damaging to businesses and employers have a right to protect themselves,” Dent said.
 
“Employees need to be aware that any conduct impacting on employee relations even if after hours can be used in a disciplinary context against an employee.
 
“The boundaries getting broader; just because you are not physically at work, you are not exempt from complying with a social media policy,” Dent said.

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