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  • Two and a half scandals: what to do when an employee’s problematic behaviour resurfaces online

Two and a half scandals: what to do when an employee’s problematic behaviour resurfaces online

Hollywood power couple Ashton Kutcher and Mila Kunis have found themselves in hot water after it has come to light that they sent letters of support for a colleague who was convicted of rape.

And actor Kutcher has come under fire even more this week as a 20-year-old video resurfaces in which he makes inappropriate comments about actress Hilary Duff, then aged 15.

Morals aside, it brings into question—particularly in this new age of social media—what options are available to an employer should historical inappropriate material surfaces on the internet about one of their employees?

Thea Watson, Chief International Growth Officer at BrightHR, says:

“Nothing is private in this day and age, and something you did years and years ago is at risk of coming back to bite you. But while footage of you doing the Macarena after a few too many tipples isn’t likely to ruffle an employer’s feathers, something that toes the line into illegality will.

“It is within an employer's rights to protect their reputation from any negative impact caused by their employees' actions. That can include social media posts, and even historic ones, as case law has shown. But as with all HR issues, employers must always manage incidents fairly and reasonably, otherwise they risk claims of unfair dismissal being raised.

“Employers should manage such incidents on a case-by-case basis. If there is no link to the workplace, there might be limited scope for taking action against the employee. However, where there is a direct link to the company, disciplinary action from employers may be appropriate. It’s best to set a policy on the use of social media and communicate this clearly with employees, so they know the exact standards expected of them.

“Should such a policy then be breached, the employer has reasonable grounds to investigate and discipline the individual. If there is not a set policy in place, employees may still face consequences for putting the organisation into disrepute. This is particularly relevant if the video reflects badly on the organisation, or suggests they condone inappropriate behaviours. Should the business subsequently lose any key clients, customers or funding, there may be grounds to treat the incident as gross misconduct. However, the outcome will very much depend on the individual facts of the case.

“Evidently, the more shares a video gets, the more widespread the damage may be to the organisation’s reputation. However, setting a baseline figure for what triggers an inappropriate video to become actionable creates difficulties for employers. It’s best for situations to be managed consistently, meaning the same action is taken against an employee with 10 likes/shares on their video as it taken with 10,000 likes/shares.

“It’s important to consider all facts of the case and look at the situation as a whole before deciding the best course of action to take.”

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