Recent months have seen an upswing in both social unrest and social media use. In countries like the United States it has become commonplace to see offensive social media posts or behaviour ‘go viral’ with an outpouring of public criticism, and for the employers or business partners of the offending party to then respond to that public criticism by cutting ties with them. While T&T’s physical borders remain closed, the ubiquity of the internet means that its cultural borders remain very much open. The rise in social media and other forms of activism locally has seen some calling for the same approach to be applied in T&T. But how does ‘cancel culture’ translate to our local employment law environment? Can employees in T&T be terminated for offensive social media posts or behaviour that occurs outside of the workplace?
T&T IS NOT AN ‘EMPLOYMENT AT WILL’ JURISDICTION
Firstly, it is important to note that, unlike the United States, T&T is not an ‘employment at will’ jurisdiction. This means that employees cannot just be terminated at any time or for any reason.
The termination of employees in T&T is generally subject to the jurisdiction of our Industrial Court. This specialist Court is not simply a Court of law, but one of equity, good conscience and ‘good industrial relations practice’. Good industrial relations practice is concerned with both procedural and substantive fairness. This means that an employer must (a) follow a fair disciplinary process and (b) have a valid reason or cause, before they can terminate an employee.
THE DISCIPLINARY PROCESS
Before deciding whether or not to take disciplinary action against an employee for their social media posts or behaviour, it is important for employers to follow a fair disciplinary process. While this can be hard for an employer to do while it is being bombarded with calls for the swift termination of an employee, it is a critical and necessary requirement of good industrial relations practice.
A fair disciplinary process generally requires an employer to:
- Establish the facts before acting on an allegation that has been made against an employee. In most cases, this will mean holding a preliminary meeting with the employee, and where applicable, other employees or witnesses. Depending on the nature and seriousness of the allegations against the employee, it may also mean collating the information and evidence that has been gathered into an investigation report.
- If, having established the facts, the employer is of the view that there is a disciplinary case for the employee to answer, the employer must provide the employee with relevant and sufficient information so as to enable them to properly understand and appreciate the substance of the allegations that have been made against them. In most cases, this will mean writing to the employee setting out specific disciplinary charges and providing them with copies of any information (such as the investigation report) that the employer intends to consider when making its final decision.
- Allow the employee an opportunity to respond to the charges, present their side of the story and put forward any reasons in mitigation of any penalty that might be imposed. This can be generally be done by inviting the employee to a disciplinary meeting or hearing and giving them an opportunity to make representations on their own behalf.
SUBSTANTIVE FAIRNESS – THE PUNISHMENT MUST FIT THE CRIME
Once the disciplinary process is completed, and assuming that there is no dispute about whether the employee did in fact make the offensive post or engage in the offensive behaviour in question, the next step for the employer is to consider what, if anything, would be an appropriate penalty. The key thing to note is that the penalty must be proportionate to the employee’s actions, in other words the ‘punishment’ must fit the ‘crime’.
Before making a decision, the employer should consider the nature and seriousness of the employee’s actions, as well as the actual and potential consequences of those actions on the employee’s ability to perform their job and/or on the Company’s business or reputation. The employer must take into account any mitigating factors, including the employee’s general and disciplinary record, length of service, actions taken in previous similar cases, the explanation given by the employee and whether the intended disciplinary action is reasonable and proportionate under the circumstances. It is important to bear in mind that termination is considered the ultimate sanction that can be imposed, and employers should consider whether a less punitive measure – such as a warning letter, suspension or demotion – would adequately achieve the objectives of discipline or deterrence.
Each case will turn on its own individual facts. In some cases, a lesser punishment may be more appropriate. In others, the employee’s actions may be so offensive or serious, and the reputational and business consequences flowing to the employer so severe that termination is justified, even where the employee has no pattern of previous similar behaviour.
The important thing for employers to be mindful of is that, while termination may ultimately be justified, good industrial relations practice requires them to take a considered and proportionate approach to these situations, instead of immediately making a ‘knee jerk’ response in the face of public criticism. This can, no doubt, often be a very difficult balance to strike. However, adopting a proactive approach can help.
BEING PROACTIVE AND CREATING THE RIGHT WORKPLACE CULTURE
Both social norms and our use of social media will continue to evolve over time. Employers must become increasingly adept at managing employee social media use and creating the right workplace culture in order to ensure that they are not caught unguarded.
It is critical that employers develop and implement clear policies and guidelines covering employee social media use and also ensure that employees are properly sensitised on the potential consequences that their social media activity can have both for themselves and for their employers.
In today’s world it is important for employees to understand and appreciate that they can have no real expectation of privacy or confidentiality in anything they create or share online, whether on their professional or personal pages. When someone creates or exchange content using social media, they are making a public statement. Their content will not be private and could be forwarded to third parties without their consent. Even where an employee is using social media in a personal capacity, other users who are aware of their employment status might reasonably associate their comments and views with their employer. Employees must also always be cognizant of the potential adverse impact that their content might have on their employer’s reputation or on customer or supplier relationships.
The internet has no doubt obscured the boundaries between people’s personal and professional lives. Employers must in turn evolve and become proactive about managing employee social media use.