I am an HR Manager and I have recently been advised that an employee has been bad-mouthing the Company on their Facebook page. How do I handle it?

Amanda Magee, Tughans Solicitors, Belfast, writes:


First and foremost, you are not alone – a YouGov survey conducted last year on behalf of Croner indicated that 11% of employees under the age of 35 admitted posting a derogatory comment about their employer on Facebook.


1. So, what can you do about it?


If the employee’s comments damage the Company’s reputation or are intended or likely to breach the implied term of mutual trust and confidence required for the employment relationship to work, then it is likely that he or she has committed a conduct offence, which may or may not warrant disciplinary action.

Most businesses will have a set of disciplinary rules and procedures which set out standards of conduct expected at work and explain what is considered to be unacceptable behaviour. With the increasing use of social networking both in and outside work, many employers are also protecting themselves by putting in place a coherent social media policy outlining appropriate use of social media both during and outside working hours.

Your query implies that you have not seen the comments posted by the employee yourself, but you have been advised of their existence by a colleague. As you have not seen the comments yourself, it would be advisable to investigate the matter further prior to instigating disciplinary proceedings. You should consider speaking to any witnesses who have seen the comments, and, because the comments were made via the internet, try to get hold of physical evidence of them. You should also conduct an investigatory meeting with the employee who allegedly posted the comments.

A written record of the investigation should be retained for future reference.


2. Disciplinary Action


If, after proper investigation, you believe disciplinary action is necessary, you should commence disciplinary proceedings. Readers will be aware that despite the repeal of the Statutory Grievance Procedures in April this year, the Statutory Disciplinary and Dismissal Procedures are still in force and remain largely unchanged. You must therefore write to the employee outlining the nature of the allegations against them and inviting them to a disciplinary meeting to discuss the allegations. You must also inform them of the possible consequences of the formal action and the right to be accompanied.

The disciplinary meeting should then take place within a reasonable period, after which you must notify the employee of the Company’s decision regarding the allegations, and inform them of their right to appeal that decision.

The severity of the disciplinary sanction will depend on the nature of the comments made and the actual or potential impact on the business. For example, derogatory comments made openly on an employee’s Facebook profile page, with unrestricted access, are likely to warrant more severe punishment than comments made via the website as a private message between an employee and a “friend”. This is because the potential audience to comments made openly on a profile page with little or no privacy restrictions will be considerably larger than that in circumstances where the comments were made as part of a private exchange between “friends”.

You should also take into account the employee’s disciplinary and general record, length of service, actions taken in any previous similar cases, the outcome of the investigation and the employee’s explanation, and whether the severity of the intended disciplinary action is proportionate and reasonable in the circumstances.

In certain circumstances misconduct offences may warrant dismissal. However, in order to justify a decision to dismiss for a misconduct offence such as this, you would need to show that the Company’s decision was proportionate and reasonable in the circumstances, and that a reasonable investigation into the matter was carried out, prior to the decision to dismiss being made.


3. Relevant Case Law


Recent case law provides a useful indication of the approach that tribunals take to the use of social media.

In Gosden v Lifeline, the tribunal held that the Claimant had been dismissed fairly for sending an offensive email from his personal computer to a former colleague's personal computer on the grounds that he acted in a way which could damage the employer's reputation. The justification for this decision was that the claimant had intended the email to be passed on (the email was headed with the words “It is your duty to pass this on!”) and so he could not argue that privacy attached to it.

Similarly, in Preece v JD Wetherspoons, the tribunal held that the Claimant had been fairly dismissed for gross misconduct after using offensive language on Facebook about her customers in breach of the employer's email and internet policy. Although the tribunal considered it might have given the claimant a final written warning instead, it found that the employer's actions were justified in view of the risk of damage to its reputation.

Conversely however, in Stephens v Halfords the tribunal found that the dismissal of the Claimant, who had created a Facebook page where derogatory comments about the company were made in breach of its policy on social networking sites, was unfair. The tribunal found that the summary dismissal of the Claimant had been outside the range of reasonable responses and no other reasonable employer would have chosen to dismiss him. The tribunal drew attention to his clean disciplinary record, his clear acknowledgement that his actions were wrong (demonstrated by his apology) and his actions in removing the page as soon as he realised that it breached company policy.

You have not indicated whether the comments made by this employee were posted during or outside working hours. This is relevant because although employees may feel that any messages they send outside work should not concern their employer, the cases above illustrate that that this is a grey area in instances where the employer’s reputation is at stake.

Whilst employers will welcome decisions by tribunals that accept that the damage caused to a company’s reputation by an employee’s indelicate comments on a social networking site can lead to a fair dismissal, cases such as Stephens are a reminder that dismissals must be proportionate to the offence. Furthermore, even where there is a clear breach of a company policy, employers will still need to act reasonably when considering dismissal and a breach of a social media policy is no exception to this.

To avoid conflicts over privacy issues parameters must be clearly outlined. Employers should ensure that internet usage policies include statements regarding employees posting derogatory comments, sending offensive emails, or similar communications or activities, inside or outside the workplace and that disciplinary action could result in the event that they do. The cases above also reiterate the importance of dealing with disciplinary issues appropriately, with the onus being on employers to conduct appropriate investigations to reach a fair and reasonable decision.


4. Conclusion


Whatever the problem it looks like social networking is here to stay. With over 750 million active users worldwide and over 700 billion minutes per month being spent on Facebook, it is a reasonable assumption that almost every workforce will in some way be affected by this and similar issues over the coming years. Therefore, employers are strongly advised to take a proactive stance by implementing a clearly-worded social media policy.