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Sandra Noakes and Sarah Hook of Western Sydney University, School of Law have written a very interesting  paper titled: ‘The blurred line between the professional and the personal: Regulation of teacher behaviour on social media’ Australian Journal of Education (29 June 2020). It is worth your time to read.

As COVID-19 blurs the boundaries between work and personal time, where is the line drawn on social media?

Huge changes to our social and working lives in 2020 have meant that we have spent a considerable amount of time online.  Many of us have maintained connections with the outside world through social media (SM); joining groups, supporting causes; uploading funny videos and sharing recipes. Teachers’ professional obligations have always reached beyond the school grounds.  However, SM obscures the distinction between the professional and the personal even further.

Increasingly, employers want to control what employees say and do on SM to protect their brand and reputation, and employers of teachers are no exception.  They try to do this through SM policies. In the most high profile case on this issue in Australia to date, the Israel Folau case, Rugby Australia argued that its rules relating to SM use were lawful and reasonable, and Folau’s refusal to observe them was a breach of his employment contract.  High-profile employees, such as Folau, are said to be obliged to follow SM policies because their job involves being a ‘brand ambassador’. But where does that leave teachers? Are they ‘brand ambassadors’ for their schools? Does SM mean that teachers are never ‘off duty’, and can never ‘be themselves’ in their personal time on SM?

Social media, teachers and the law

Often, when this issue is discussed in the media, there is little attempt to distinguish between different types of behaviour on SM, and it is important to understand that employers have greater rights to control some forms of behaviour than others.

Put simply, ‘trash talking’ your employer, your students or your colleagues on any SM platform is unacceptable, as this breaches your duty of fidelity to your employer.

The law is also clear that inappropriate conduct on SM towards work colleagues or students is something that an employer can control, even when you do it away from work.  It can result in the employer being legally liable for your actions and may constitute workplace bullying or harassment.  It is also a breach of your duty of care to students.

The grey area

There is, however, a third category of behaviour: where a teacher engages in conduct on SM that has no direct connection to their employment, but may embarrass the employer if their connection to the employer is known.   For example, in 2018, there were media reports of a teacher at Geelong Grammar who was investigated by her employer for participation in a private anti-vaccination chat group.   The Principal of Geelong Grammar had reassured parents that no students had been put at risk, and no there was no evidence that the teacher had shared her views with her students.  In short, she was being investigated for her participation in this online group, outside of school hours and in her personal time.

What about a right to a private life?

Before SM, employment law consistently reinforced that all employees have a right to a personal life. But how far that right extends is now in question, given so many of us conduct our personal lives in such a public way on SM.  This issue has become more important in 2020, where, often, SM has been our only means of connecting with each other.

While we have privacy legislation in Australia, it does not apply to all employers and does not protect teachers from employers examining their behaviour on SM.

What about the right to free speech?

The ability to dissent, to argue, and to comment on our institutional systems is what sets democratic societies apart from autocratic or fascist regimes. Freedom of speech and the curtailment of freedom of speech is an important human right, as recognised by the Universal Declaration of Human Rights.

However, freedom of speech in Australia is not a Constitutional right and Australian law has less protection for freedom of expression than the UK or the US. We have freedom of political communication, which is implied in our Constitution, but it’s not absolute.

What about the Fair Work Act?

If a teacher is disciplined for making political or religious comments on SM, they seek a remedy under anti-discrimination legislation. A popular avenue for employees has become the General Protections (GP) provisions of the Fair Work Act. However, these have limited application to teachers in religious schools.  In addition, the 2014 High Court case of CFMEU v BHP Coal shows that an employer can argue the reason an employee was disciplined was not for holding particular beliefs, but for the way they were expressed.

In the BHP case an employee was dismissed for waving an offensive sign at other workers who crossed a picket line during an industrial dispute. The employee claimed he had been dismissed for participation in a lawful picket, but BHP successfully argued the employee was dismissed for the expression on the sign contravening workplace policies requiring workers be respectful and courteous towards each other.  It is possible that the same argument could be made by an employer who wanted to discipline a teacher for expressing their political or religious views on SM in a provocative or unconventional way.

Is social media an employer’s business?

Our examination of SM policies that seek to control teacher behaviour in their personal time found that many employers seek to control this behaviour, and that the policies are quite far-reaching.  For example, in some cases there was no distinction made in the policy between work and non-work behaviour on SM. In others, there were extremely broad directions that teachers not to behave on SM in a way that might harm the ‘reputation’ of the school. Other policies required teachers to exercise control over what their family and friends posted about them, which seems an almost impossible task.  Finally, some required teachers to report any negative comment about the school that they found on SM. Most concerning, however, was the fact that nearly all policies stated that a teacher could be disciplined for breaching the SM policy.

What employers have not fully considered is the legal status of these SM policies, especially those that attempt to control what teachers do on SM in their own time and reach far beyond a teacher’s professional obligations. In Australia, an employer can give directions through workplace policies, and employees have an obligation to follow them. However, the Courts state that the situations where a workplace policy can control what an employee does in their personal time are limited. Where SM policies intrude too far into an ordinary employee’s personal life, or lack any rational connection to an employee’s duties, they become harder to enforce. Some employees, especially high-profile employees, may have an obligation to conduct themselves at all times in a manner which will not harm the reputation of their employer.   However, most employees are not paid to be their employers’ brand ambassadors in their personal time, and this means that any SM policy requiring them to do so may be open to challenge.

Teachers should be aware that it is possible to argue an employer’s SM policy that is not directly related to the teacher’s employment is not a lawful and reasonable direction. And employers need to pay more attention to tailoring these policies so that they allow teachers a personal life, even one that is conducted on SM.

If you have SAGE Journal access, this is the DOI:
https://doi.org/10.1177/0004944120924889