Employee activity in social media
According to research, almost half of Poles confirms that they actively use social media. Labour law provisions cannot keep up with the rapidly changing reality and do not explicitly refer to employee activity in social media. However, it does not necessarily mean that the use of social media by an employee is not restricted in any way.
There is no doubt that skilful use of social media might be successfully used in order to build a positive image of the employer. Active support of employees through following the company profile, sharing posts published on the company profile or running their own professional profiles might significantly support the communicative strategy of the employer. However, sometimes the content published in social media by an employee might be troublesome for the employer.
RIGHT TO PRIVACY
The employer is obliged to respect dignity and other personal rights of the employee, including the right to privacy. Therefore, it is usually assumed that, as a rule, the employer has no right to interfere in the content published by the employees in private social media. However, it does not mean that the employee activity in social media is not subject to any restrictions from the point of view of labour law. The employee shall bear in mind that his/her activity in social media might breach, resulting from the article 100 § 2 point 1 of the Labour Code, a duty to observe working time in the workplace (e.g. publishing private posts during working hours), resulting from the article 100 § 2 point 4 of the Labour Code, a duty to take good care of the interests of the employing establishment (e.g. publishing negative posts on the employer's activity), resulting from the article 100 § 2 point 4 of the Labour Code, a duty to keep secret information, the disclosure of which may cause the employer to suffer (e.g. publishing confidential information concerning clients or ongoing projects), or finally, resulting from the article 100 § 2 point 6 of the Labour Code, a duty to observe the rules of social coexistence (e.g. insulting co-workers).
KEEPING INFORMATION CONFIDENTIAL
Activity of an employee in social media may even unintentionally lead to a disclosure of information, which should never become available. It is easy to imagine a situation, in which a photo taken by the employee during working hours in the office, includes a part of a confidential document or the location of the photo reveals to the competitor, the contractor with which the company conducts negotiations. According to the article 100 § 2 point 4 of the Labour Code, one of the basic duties of an employee is to keep secret information, the disclosure of which may cause the employer to suffer. Drawing negative consequences regarding the employee will not enable the employer to repair the damage already caused by the disclosure of confidential information. Therefore, it seems that from the employer's point of view itis more beneficial to prevent such situations through introducing clear rules (e.g. what can be considered as confidential) and raising awareness of the employees (e.g what they should pay particular attention to).
CRITICISM OF THE EMPLOYER
One of the issues that the employer sometimes faces in practice, is publishing in social media negative comments on the employer's activity by the employees (e.g. publishing critical comments on the organisational changes in case of implementing a new strategy). If the employer wants to draw consequences towards the employee, the right to allowed criticism is a very often used argument by the employee.
In jurisprudence it is indicated that the 'allowed criticism' shall be characterized by factuality, reliability, relevance to the specific facts and appropriate form (Supreme Court judgement from 25th November 2014, file no. I PK 98/14). Therefore, one may wonder, how much of appropriate form of criticism in a given case it is to publish the information in question in social media. In terms of assessment of the situation and its possible consequences, the intentions of the employee should be taken into account. Publishing unauthorized information by the employee will not always justify termination of the employment contract on the basis of article 52 § 1 point 1 of the Labour Code, if the intention of the employee was to improve the situation (Supreme Court judgement from 16th November 2006, file no. II PK 76/06). It may however be the cause of termination of the employment contract due to the loss of trust and inability to further co-work together.
Another issue, which sometimes faces the employer in practice, are inappropriate or insulting posts published by an employee regarding his/her co-workers. The duty to observe the social rules of coexistence in the workplace, resulting from the article 100 § 2 point 6 of the Labour Code, includes among others, the obligation of an employee to behave appropriately towards his/her co-workers. It should be understood as the employee's behaviour being in accordance with the applicable in a given place and time non-legislative, moral, ethical, customary standards. Insulting co-workers may be the very violation of the rules of social coexistence (Supreme Court judgement from 9th July 2008, file no. I PK 2/08). Therefore, it seems that publishing posts in social media may very well be considered as a violation of the rules of social coexistence. In terms of assessment of the situation, we should take into account not only the content but also other aspects of a case (e.g. whether or not the post is publicly available).
POLICY REGARDING SOCIAL MEDIA
From the employer's point of view, it seems beneficial to clearly state the rules of employee activity in social media. The employer may in this regard introduce appropriate provisions to the workplace regulations or decide to introduce a separate policy concerning social media. Clear internal regulations may constitute a vital argument in favour of the employer in case of an undesirable employee's activity in social media. It is worthwhile for the employer to set in the workplace regulations or the social media policy the rules of social media use during working hours and by means of the employer's equipment (e.g. ban), use of the company's image (e.g. indicating own place of employment in social media), speaking on the company's behalf (e.g. a disclaimer that only authorized employees may speak on the company's behalf).
Is also seems useful to indicate which actions of an employee may be considered as a violation of the duty to take good care of the interests of the employing establishment, the duty to keep secret information, the disclosure of which may cause the employer to suffer, the duty to observe the rules of social coexistence. It shall be remembered that the rules should be introduced with respect to the employee's right to privacy.
Author: Bartłomiej Babańczyk, Attorney-at-law, Baker McKenzie