Can an employer terminate an employment contract based on online statements?

This week we read in De Standaard about the dismissal of a lecturer at the Arteveldehogeschool in Ghent. In his spare time, the lecturer made videos in which he did not mince his words. The content of these videos were often sexual jokes. He subsequently posted this content on his Tiktok account. According to the lecturer, the intention of videos was to bring certain topics out of the taboo. He also felt that these ambitions were compatible with his pedagogical function. However, his employer thought otherwise. The teacher was invited to the management for an interview. But three days later, his contract was nevertheless terminated by mutual agreement. De Standaard asked Filip Tilleman, Labour Lawyer, about the legal framework on this.
Are posts on social media increasingly the reason for dismissal?
Filip Tilleman: “Yes, they are. The first case I know of was that of a financial director at a listed company. He had posted derogatory comments online about his company’s figures. As this had an impact on the share price, he was fired for cause. This used to happen rarely, now it happens regularly. Content often involves insults or absenteeism. Doing another job is also sometimes a reason. Like when a cook calls in sick, but it turns out on Facebook that he is in a food truck at a festival.’
When does an employer have the right to fire an employee in such a situation?
‘If you work for a company, you have to be loyal to your employer. You are allowed to criticise, as long as it is not an insult or damages the company’s reputation. Of course, whether or not you get fired depends on the seriousness of your utterance. A scathing remark will never be an urgent reason. There is no general rule. If you swear in a factory, few people are likely to look back. But if you swear in a merchant bank while top clients are arriving, it almost causes an earthquake. So it is considered on a case-by-case basis.’
So is the utterance on social media the only reason for dismissal, or is there more to it and it is seized upon because such a thing is in black and white? ‘Of course, the past plays a role: have there already been notices of default? Statements on social media are indeed a pretty convincing piece of evidence, especially in the case of absenteeism. If someone calls in sick with back pain but can be seen on social media at a karting event, there is still little doubt. Interestingly, it is often colleagues who report it. For example, they are tired of having to jump in.’
Posts on your private account can also lead to dismissal, but not if they are discovered by an undercover account of your employer?
‘That’s right! To put it plastically, an employer cannot skim everything on social media in an anonymous submarine. But if a colleague or friend follows the account and forwards something, you can, even if it is a private account. As an employee, you have to realise that anything can escape from the inner circle. In other words, even protected accounts are public.’
What tips do you give to handle social media safely?
‘First, reflect before you begin. Have you had a tough meeting? Don’t go fulminating on social media in the heat of the moment. Also ask yourself: should I say this face to face to my employer, how would they react? This is a good yardstick, because legally a verbal or virtual statement will be judged crackingly the same. If you don’t dare say it, don’t post it. Finally, don’t be fooled by the false sense of security of shielded accounts. Private accounts are also public.’
You can read the full article from De Standaard here.  

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