An employee has recently approached a member of the HR Team with a screen shot from Facebook showing another employee’s profile page. The profile page indicates that the employee works for the Company and also shows him to be “following” the Company on twitter. The employee’s profile picture shows him taking part in fighting and violent protests. The employee is clearly distinguishable from the picture and the HR team is concerned about the impact that the picture may have on the Company’s reputation. The HR team is seeking guidance on the factors that must be considered when considering disciplinary action in relation to conduct outside of working hours and which becomes apparent through social media.

The starting point is that employees can be disciplined for actions outside of work. The key issue is whether the conduct in question is linked to or impacts on the employee’s ability to do their job. A fair process must still be carried out in accordance with the Company’s disciplinary procedures, regardless of whether the conduct took place inside or outside of work.

In this case it is important to investigate the issue and establish whether there is a disciplinary case to answer. As part of the investigation, the Company must identify the reason that disciplinary action is being contemplated. The employee should not be disciplined for taking part in a protest per se, but instead the potential impact that the fighting and violence has on the Company’s reputation and potentially the relationship of trust and confidence between the employee and the Company.

Having identified the reason for considering disciplinary action, the Company should look to whether the conduct can sufficiently be linked to the employment. Cases involving sexual conduct, violence or dishonesty are the most likely to affect the employment relationship, either because of the particular nature of work that employee does or because of the general considerations about potential damage to the employer’s reputation.

Given that the main concern in this case is the damage to the company’s reputation (as opposed to other employees feeling threatened for example), the Company must be able to demonstrate that there is a genuine chance that the reputation could be damaged before taking any disciplinary action against the employee. In considering this issue the Company should look to the number of “friends” that the employee has on Facebook and whether his Facebook profile is public (i.e. can it be accessed by people who are not his “friends”).

Further, the fact that the employee has clearly identified himself on his Facebook page as working for the Company will support the case for disciplinary action as it shows a further link with the Company. It should be kept in mind that taking disciplinary action for conduct which does not show the Company or employee in the best light is unlikely to be seen to be reasonable. The Company will need to demonstrate that it is reasonable to conclude that its reputation could actually be damaged.

In Whitham v Club 24 Ltd t/a Ventura ET/1810462/10 it was held that dismissing an employee for derogatory comments about her place of work on Facebook was not reasonable and was therefore unfair. The Tribunal concluded that the comments were “relatively minor” and there was no evidence that relationships with customers had been harmed. There had also been a failure to take account of the employee’s clear disciplinary record. This case is a warning to employers that they must assess the potential damage before making a decision regarding disciplinary action and must also follow a fair procedure.

One solution to the difficult issue of dealing with the use (or misuse) of social media by employees is to have a clear, up to date social media policy. This should set clear parameters about permitted use for each employee. The key elements of any social media policy ought to be:

• Acceptable use in the workplace;
• Potential to take action based on use of Social Media outside workplace
• Appropriate use of business networks.

In the case of Preece v JD Wethersoons plc (ET/2104806/10) the Employment Tribunal took account of the employers comprehensive policy covering the use of social media which referred to the risks of lowering the reputation of the employer or its customers. The policy stated that failure to comply would be gross misconduct and as such, the Tribunal found that the employee had been fairly dismissed for posting derogatory comments regarding customers on Facebook.