What can you do if an employee records and posts a layoff on social media?

A recent TikTok trend shows employees recording being told they are getting laid off over video call and then sharing the video recording online. The posts are being shared with millions of users and the TikTok hashtag #layoffs has garnered over 366 million views. Not only does this trigger potential data protection breaches and reputational issues for the employers in question, but there are also employment law considerations to think about. In this article, employment lawyer Audrey Williams outlines what employers can do if they find themselves in this situation.

This trend may well be a result of/combination of factors:

• • our changing workplace culture, with remote working (perhaps even more remote dealings) rather than face-to-face dealings which are more appropriate for HR and career discussions;
  • greater reliance on technology;
  • more impersonal and remote management.

What does the law say?

Under UK law, to ensure a fair dismissal, employees should be consulted with before being made redundant or laid off. Such consultation should be meaningful and include discussion about the reasons for the redundancies/headcount reductions, ways of avoiding redundancies (for example, how to achieve other cost savings), selection and redeployment.

It is strongly advised that whenever HR meetings take place (which also applies to email dialogue), assume the way in which the meeting is conducted and what is said will be repeated in an Employment Tribunal or other open forum; so, manage and set the tone of the discussion accordingly. This will put employers in a better position should an unfair dismissal claim be made against them, and is likely to improve the discussions.

Mass layoffs, particularly in the tech sector, have been ongoing over the past few years; coupled with the power of social media, it is not surprising employees feel aggrieved and seek to record and publicly disseminate confidential discussions. This sense of unfairness and risk will undoubtedly increase if individuals feel they have been presented with a fait accompli or the discussions have been lacking in empathy or support (for example, exploring redeployment/alternatives and an appeal against the decision as well as offering outplacement).

Once an employee is under notice, or their employment terminated, it is difficult to take action against them for breach of confidence or breach of contract where recorded meetings are shared publicly. If others in the meeting did not know or consent to being recorded, there may be data privacy/data protection rights which could be relied upon to curtail or limit the circulation of this recording. However, even if there is a breach of data protection rights, the damage done to the employer’s reputation will be close to impossible to undo given how quickly social media posts can go viral.

As prevention is better than cure (to reinforce the data protection rights, and confidentiality), managers should seek confirmation before a meeting starts (particularly a remote meeting) that it is not being recorded and then confirm that the HR notes will be circulated later. This will help employers have a degree of control over the situation and any potential Tribunal claims down the line.

If you have questions about the issues raised in this article, please contact Audrey Williams.