What are an employer’s options if an employee releases explicit footage of co-workers to the wider world?

With Valentine’s day upon us, work romances may well be the talk of the office. However, occasionally these romances can become the focus of more than just talk, when colleagues obtain explicit footage of their co-workers and share it with the world. When it comes to the individuals caught in the act, if perceived by employers as gross misconduct disciplinary proceedings would follow the traditional route, and would probably result in dismissal.  

What has changed, however, is the way in which this indiscretion is made public, and the employer’s reaction to this news should also change with that. Whereas once a colleague in possession of incriminating evidence may have approached a tabloid newspaper, now they can unthinkingly share it instantly through social media – meaning it could go viral before the employer is even aware of the incident. A recent example: footage of two DVLA co-workers having sex at a Christmas party was secretly recorded by a colleague. The video was circulated on WhatsApp, and quickly made its way on to Twitter to an audience of thousands.

In the years preceding social media, employers were more likely to regard a scenario such as this as a breach of trust on the part of the employee communicating the story, and a damaging attack on the company. Selling a ‘sex scandal’ to the tabloid press is a conscious decision, and therefore represents more of an apparent betrayal.

Who is responsible?

When the story has been published on social media, organisations may still want to discipline the employee responsible, but it is much more difficult to hold any one person accountable. In this case, for example, the employee who filmed the incident may have privately shared it among friends and colleagues on WhatsApp, but they might not have been the person who released it on Twitter.

Moreover, organisations should anticipate and accept that ‘gossip’ will be shared in this way, given the general lack of privacy reservations on social media. Arguably, HR managers should concentrate their efforts on resolving any internal political fallout resulting from such escapades, rather than trying to strictly enforce an apparent breach of trust.

It should be recognised that not only has the medium of communication changed, but also the message itself. While directly informing the media would suggest disloyalty towards a company, it is difficult to reconcile this sentiment with a video that has simply escalated on social media.

It certainly seems unlikely that this was intended as an expose of a promiscuous working culture. Rather, the decision to share the story was more likely fuelled by dislike towards the specific individuals, or simply because the employees found it amusing – not with the intention of being a blow to the company’s reputation.

How should organisations respond?

Not overreacting is the key here. If employers understand that the story is not about them as a whole, then they should also understand that there is no need to embroil themselves in it.

Previously, organisations might have issued formal statements to the media in response to such stories becoming public. This is now unnecessary and futile, as there can be no way of controlling or containing the story on social media. More importantly, in reacting defensively, companies risk diverting the attention towards the organisation and away from the individuals. Attempts to protect public image, therefore, can do more harm than good.

In response to the leaked footage of its employees, the DVLA wisely stated that it was a private matter for which no action was needed. If no genuine reputational or commercial damage has been caused as a result, organisations benefit more from adopting this nonchalant approach.

Companies that still interpret such scandals as being a direct reflection of its reputation are mistaken, and ultimately risk inflating the issue far beyond its original significance. In a world where boundaries are far from clear, organisations need to think about whether these social media issues are really employment concerns.

Darren Maw is managing director of Vista, an employment law specialist