The blurry line between employee expertise and social media opinion

Written by Christine Symes and Sophie Broome

A recent Employment Court case Turner v Te Whatu Ora – Health New Zealand raises the question of employment-related opinions and the use of social media – appropriate or inappropriate?

Turner was a palliative care nurse working at a Retirement Village run by Wairarapa District Health Board. Turner was dismissed for voicing personal opinions on her Facebook account about the negative implications of the COVID-19 vaccine and in addition, race related opinions. These were contrary to the views of the DHB who did not see the actions as appropriate, particularly given Turner’s position at the time of the Facebook post.

Turner challenged the dismissal and the Court sided with the DHB agreeing Turner’s dismissal was justified based on serious misconduct.

Many employers face issues about where to draw the line between ensuring employees are entitled to free speech while also protecting their business from harassment and/or embarrassment. Protecting the employee while also protecting relationships with customers and the wider public can be a balancing act.

This issue for employers continues to rise with the increase of social media platforms globally. Between Facebook, Instagram, Twitter and TikTok, there are now an abundance of platforms for an employee to voice their opinion. So, when can an employer step in?

While it is not advisable for an employer to systematically watch an employee’s social media account, there can be legitimate reasons for an employer to step in, particularly if the content gives rise to a complaint against their business.

Employers should have clear social media policies which set out expectations of how employees behave both in and out of workplaces and employment contracts can include a clause which makes it clear where an employer may draw the line. Policies can also include levels and procedures of enforcement and potential discipline. Employers may recommend employees check privacy settings on their social media to ensure they know who is reading or viewing their content. An employer may also ask the employee to add a disclaimer, disassociating the employee’s opinion with that of their employer and their business.

While these steps could fundamentally help decrease the risk for employers, it remains crucial that employees’ rights are maintained and employers remain impartial. Training is important to ensure employees understand what is deemed appropriate in terms of communication, especially regarding social media content as well as behaviours to ensure a respectful and inclusive workplace.