Should an employee be fired for an 'out of hours' scandal?

Should an employee be fired for an 'out of hours' scandal?

With social media blurring the lines between personal and private, in the wake of the recent Charlottesville protest, a Twitter account attempted to reveal the identities of those who marched in favour of white nationalism.

The exposure lead to the firing of a man identified in the images. But, can an employee really be fired for something they did outside of work? According to Jon Hyman, Partner at Meyers Roman Friedberg and Lewis, there’s good legal precedence for firing an employee for disruptive behaviour, even if it was the off the clock.

Writing in a blog post, Hyman focused on the firing of the man exposed by the @YesYoureARacist account. Hyman states that he’s received feedback from both sides, some have thanked him, whilst others have questioned the matter of privacy and whether there’s legitimate proof that the man who fired was actually a neo-Nazi.

Hyman essentially explains that constitutional rights allow an employee to speak their mind and profess a point of view – but that “those constitutional rights stop at a private employer’s door”.

He adds: “I, as a private employer, have the right to hold my employees accountable for their viewpoints and terminate when I, in good faith, determine that those viewpoints may bleed into my workplace and create a hostile environment for other employees.”

And with the rise of social media, a new wave of transparency allows employers to see many, if not all, of their workers’ viewpoints. However, there could be a legal risk in the UK with firing someone based on information obtained via social media. An incoming proposal of the Data Protection Bill states that candidates have the right to request that social media companies delete personal information held about them.

The guidelines from the Article 29 Working Party suggest that any data collected from an internet search of potential candidates must be necessary and relevant to the performance of the job. The party recommends that these guidelines form part of the General Data Protection Regulation (GDPR), which are due to come into force in May 2018.

In addition, employers that use Facebook, Twitter and other social media to check on their employees could be breaking European law in future - and could also face a hefty fine, equating to 4% of global turnover.  An EU data protection working party has ruled that employers should require ‘legal grounds’ before snooping. The recommendations are non-binding, but will influence forthcoming changes to data protection laws – BBC News reports.

Hyman adds that if you understand the risks, you can still argue your reason for dismissal. His suggested reasoning goes along the lines of: “This is not the workplace for you, and if you want to sue us, bring it on. I’d be happy to defend my decision in court that this is not the type of behaviour insider or outside of work that helps define who we are as a company.”

What are your thoughts, should someone be fired because of something they did outside of work, which was publicised over social media? Vote on our HR Grapevine poll below...

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