How employers should respond when employees’ problematic behaviour resurfaces online

13 September 2023, Australia - Hollywood actors Ashton Kutcher and Mila Kunis have found themselves in hot water after it came to light that they sent letters of support for a former colleague who was convicted of rape. Ashton Kutcher has faced renewed criticism this week after a 20-year-old video resurfaced in which he made inappropriate comments about actress Hilary Duff, who was 15 years old at the time.

In the age of social media, employers may face difficult decisions when historical inappropriate material surfaces online about one of their employees. 

Thea Watson, Chief International Growth Officer at BrightHR, says there are a few options available to employers in this situation, “In today's digital age, everything you do online can be traced back to you. This means that anything you post or share, even if they are from years ago, could potentially come back to haunt you. While a video of you dancing the Macarena after a few drinks might not be a big deal, something that could be considered illegal could have serious consequences for your career.

“Employers have the right to protect their reputation from any negative impact caused by their employees' actions. This can include social media posts, even those made in the past. However, as with all employment relations issues, employers must always handle incidents fairly and reasonably, or they risk being sued for unfair dismissal.

“Such incidents should be managed on a case-by-case basis especially if there is no link to the workplace, there might be limited scope for taking action against the employee. However, if 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 standards expected of them.

“If an employee's social media post violates company policy, employers have the right to exercise due diligence, investigate, and commence disciplinary action where appropriate. Even if there isn’t a written policy in place, employees may still be held accountable for their actions if they post something that is detrimental to the company's reputation. This is especially true if the post reflects badly on the company or suggests that it condones inappropriate behaviour, and the outcome of any disciplinary action will depend on the specific circumstances of the case.

“The more shares a video gets, the more damage it can cause to an organisation's reputation. However, it is difficult for employers to set a specific number of shares that would trigger disciplinary action, as this could lead to inconsistent treatment of employees. It is best to handle each situation consistently, regardless of the number of shares the video has received. Ultimately, it is important to consider all the facts of the case and examine the situation before deciding the best course of action.”

- ENDS - 

Editor Notes:

• BrightHR provides award-winning HR and H&S software and advisory solutions for SMEs, servicing over 22,000 clients in Australia and New Zealand on workplace relations and workplace health & safety issues. It was founded in 2015 to help Australian and New Zealand SMEs navigate their obligations under the relevant legislation. It does this via a suite of innovative applications and advice line, where businesses can access people management tools, receive guidance, education and speak with their team of workplace relations specialists.
• Where possible in online media publications, please link back to BrightHR’s homepage.