An employee has posted a comment on his personal Facebook page saying that he hates his work, our customers and his colleagues. The comment was made in his own time on his home computer, but it has been seen by some of our regular customers. His manager has told him that we will dismiss him.
Peter replies:
Whenever an employer is considering disciplining an employee because of social media misuse, the ACAS Code of Practice on Disciplinary and Grievance Procedures should be followed. This requires:
- a letter to be sent to the employee to explain the allegations and the potential sanctions
- a disciplinary meeting with the employee to give them an opportunity to explain their side of the story
- informing the employee of the decision
- giving the employee an opportunity to appeal against that decision.
An employer should always act reasonably in the circumstances. Therefore, before coming to a decision as to whether the employee should be dismissed, you should reflect on whether the posting and any damage caused by it, is so bad that it justifies such action. You must avoid knee-jerk reactions. Consider what was actually said and the context. Saying “I think I work in a nursery and I do not mean working with plants” is very different to specifically saying “my manager is apparently a c**t” (both of which are examples that have featured in Tribunal cases.
Someone must investigate the matter thoroughly. The employee should be given an opportunity to explain themselves. There have been situations where, for example, an employee’s account has been hacked and they did not make the offensive posting.
You should also evaluate the reach and impact of the posting; the more posts that are made and the more people that see them, the more likely it is to have a damaging impact. In this case regular customers are already aware of what was written. Consider your own internal guidance as most sensible employers now have a social media policy. Take into account any mitigating circumstances; where the employee has swiftly removed the posting or apologised, you may perhaps want to be more lenient, particularly if they have a previously good employment record.
Case law continues to evolve on employees being disciplined for what they say online, both in and outside the workplace. You can seek to treat social media postings by employees as disciplinary matters if they would genuinely damage your interests.
After the investigation, decide whether disciplinary proceedings are appropriate given the circumstances. If you believe that they are, start those proceedings by following the steps set out in your Disciplinary Procedure. Conduct a fair, impartial, thorough disciplinary hearing; then make up your mind.
To safeguard your business against social media misuse occurring in the first place:
- Introduce a robust Social Media Policy which clarifies how employees should behave and the consequences of the misuse of social media, even those written in their own time using their own equipment.
- Ensure the policy fits with existing employment documents such as policies on bullying and harassment, data protection etc.
- Train employees so that they fully understand the expected standards.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
