Can an employee get fired over social media posts?

Finding a fellow employee on social media can seem harmless at first but can ultimately cost one or both of them their jobs if things take a wrong turn. It’s not uncommon to see stories about employees who were fired because of their online posts which more often than not are reported by colleagues. While social media can help build a career, connect with recruiters and power job searches, it can also cause harm to one’s reputation and probably lead to a job loss. Many employers expect their employees to act appropriately outside of work and for this reason, social media is increasingly becoming an area of concern for employee conduct. In this article, we explore how inappropriate use of social media can have severe consequences for our employment.

The Kenyan Public often assume that their right to freedom of expression is protected absolutely in terms of the new constitution. However, not everyone is aware of the limitations to this right as they ought to be. The right is expressly limited to exclude advocacy for hatred and incitement to violence. The barrier to this right may also arise in employment relationship where an employee knowingly violates the social media policy provided by the employer and as a consequence jeopardizes the business of the employer.

In Linsey Atieno Ojwang vs. Fusion Capital limited (2017) eKLR for instance, the court considered whether an employer could lawfully terminate an employee on the grounds of alleged misuse of the social media or for making comments deemed offensive to the interests of the employer. In the above case, the claimant traveled back to Nairobi from Kigali Rwanda for the Christmas holiday and got an unusual call from the respondent’s (employer) office summoning her to pick a letter. The practice was to get vouchers, and when the letter was issued to her, she thought it was a voucher. On her way home, the claimant read the letter only to realize it was a letter of termination over alleged misconduct. That on 9th December 2012 she had discussed the respondent (employer) on social media. The allegation was that claimant had used her Facebook account for personal communication as it is fun and social friends place but the respondent accused her of discussing its internal and confidential matters in public hence dismissing her summarily. Although the claimant was successful in proving to the court that the termination was unfair as she was never accorded a fair hearing in line with section 44 of the Employment Act, she nonetheless lost her job.

In another case, in 2009 a University of California student made a tweet regarding an offer of an internship with CISCO a software company in the U.S. In the tweet, she appreciated the ‘fatty paycheck’ from the company but decried the long distance she had to commute daily to work adding that she hated the job. An employee of the company discovered the tweet, and consequently, the offer was rescinded raising a firestorm of publicity which ended with a lawsuit.

It would seem from the preceding that any behavior that is malicious or causes harm to the employer’s business may be a ground for termination. It is important to relay to the employee what the social media policy of a company is before hiring to make it clear from the very beginning that the employer would not condone some conduct. Although an employer reserves the right to discipline an employee for misconduct including that which is done outside of work, the law requires the employer to prove that there is a connection between their conduct outside work and employer.

An employer cannot take action just because they don’t like the employee’s behavior outside of work. Where the employer thinks that there is a link between the employee’s conduct outside of work and the employee’s job, then they must initiate a fair disciplinary process that affords the employee an opportunity to be heard before coming to a decision.

While many employers have social media policies in place, the extent to which these policies can be relied upon to justify disciplinary action taken against an employee will depend primarily on, among other things, whether the employee knows or ought reasonably to have known about the policy.

Oscar Onyango

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Email: [email protected]

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Employment and Labour Laws,Kenya