Can an employee be fired for inappropriate social media post?

An adage goes ‘if you do not have anything nice to say, do not say it’ perhaps this should be adapted to modern life as ‘if you do not have anything nice to tweet, do not tweet it.’

The dangers of posting online without thinking are undisputed.

It’s common to see stories about employees who were fired because of their online posts, which more often than not were reported by colleagues they had trusted enough to be their followers on a social media platform.

Despite being a modern-day problem, employees misbehaving on their social media accounts has become a regular and difficult issue for employers to deal with.

While social media can be an incredibly useful tool for businesses, on the flip side, it can be a risk to both employees and employers. To employees, it may lead to loss of employment while employers may be held vicariously liable for the actions of their staff. You must know how to react when an employee misuses social media.

In Kenya, freedom of expression is protected absolutely in terms of Article 33 of the Constitution. However, not everyone is aware of the limitations to this right. The right excludes advocacy for hatred and incitement to violence.

In an employment relationship, the limitation arises where an employee who knowingly violates the social media policy of an employer and jeopardises the business is dismissed.

In Linsey Atieno Ojwang versus Fusion Capital limited (2017) eKLR, the court considered whether an employee could be terminated on the grounds of alleged misuse of the social media, for instance, by making statements deemed to be adversarial to the interest of the employer.

The court noted although the claimant had used her Facebook account it was wrong to discuss the business interests of the employer on social media. However, since the proper procedure was not followed, the employee was awarded damages for unfair termination.

The upshot is that any behaviour that is malicious or causes harm to the employer’s business may be a ground for termination. It is important to communicate to the employee what the employer’s social media policy before hiring to make clear the standard expected of employees and the consequences if they fall below.

Although an employer reserves the right to discipline an employee for misconduct including outside of work, the employer must prove that there is a connection between their conduct outside work and employer. An employer is forbidden from taking action merely because they do not approve of staff’s conduct outside of work without proving the connection between such act and the business.

The writer is associate Simiyu and Wekesa.