Stories of scam artists and fraudsters, like Inventing Anna and The Tinder Swindler, have been hitting a nerve with many viewers as they try to comprehend how the scammer managed to get away with it for as long as they did, together with questioning how someone’s moral compass can go so off-kilter.
Another entry into the genre is the wildly popular podcast Sweet Bobby, a live investigation into one of the UK’s worst-ever catfishing cases. A ‘catfish’ is a person who sets up a fake profile on a social networking site for fraudulent or deceptive purposes. Sweet Bobby is the heartbreaking, and at times seemingly incomprehensible, story of a woman who was catfished for nearly 10 years.
One of the many things to come out of this podcast is that the perpetrator was ‘unmasked’ during the series and so the public knows exactly who the catfish is and, more importantly from an employment law perspective, it is quite possible to work out who the catfish was employed by as a result.
The question then arises as to how an employer might seek to address instances of catfishing affecting the workplace.
Social media policy
Employers should review their social media policy and ensure that it covers catfishing. It should be clearly stated, among other examples of inappropriate use of social media, that catfishing (or impersonating) a colleague or a third party is unacceptable. The policy should link in with other HR policies and where catfishing is alleged, the policy should be clear that it will be treated as a disciplinary matter, resulting in sanction up to dismissal depending on the perceived damage that could be done to an organisation’s business interests or reputation, even indirectly if the misconduct took place outside of work.
The policy should be regularly reviewed to keep up with this constantly evolving area of technology. Employers should also conduct regular training with their workforce to ensure employees are aware of the rules on social media and what is prohibited. Importantly, the policy should make clear that it covers personal use where that personal use could adversely affect the business.
Taking disciplinary action
Employees can be dismissed fairly for conduct within or outside of the workplace relating to their inappropriate use of social media.
In certain situations, the company may decide that suspension with pay is necessary while the investigation is carried out. This is generally to be avoided unless in the most extreme situations and as a last resort given the employee relations issues which can arise. Suspension with pay should be reviewed to ensure it is not unnecessary in length of time. It should be made clear that the suspension is temporary, not an assumption of guilt and not a disciplinary sanction.
In deciding whether a social media dismissal is fair, this is a very fact-sensitive area but case law has shown the following factors to be relevant in many instances:
- whether the employer has an IT or social media policy;
- the nature and seriousness of the alleged misuse;
- any previous warnings for similar misconduct in the past;
- actual or potential damage done to customer relationships;
- the employee's position and role;
- whether the comments were made on a social media account used for personal, rather than work-related, purposes;
- where the activity was conducted from and when, ie, from the employer's work device or the employee's personal device and whether it occurred during, or out of, working hours;
- the impact of the employee's conduct on the employer's business;
- the reasonableness of the employer's disapproval of the employee's behaviour;
- whether there were mitigating circumstances to be taken into account, such as whether the employee apologised or considerations as to the employee’s behaviour during the disciplinary investigation, eg, whether or not they were cooperative.
Daniel Stander is an employment lawyer at Vedder Price