With social media playing an increasingly important role in the work and personal lives of employees, employers can be presented with challenges when a post reflects negatively on their business.
The BBC recently reported the case of Rachel Burns who worked at a residential care home and posted a photo of a singalong at work on her Facebook page. Rachel was dismissed as the post was deemed to breach Surrey County Council’s policy. An employment tribunal accepted that the employer was entitled to dismiss an employee for posts on social media but concluded that the employer acted unfairly as it did not follow a fair procedure.
The case highlights that when it comes to social media, business owners of all sizes need to be as clear as possible from the outset what is and is not acceptable behaviour online. This will vary from business to business and will change as the digital world continues to evolve.
Ordinarily, what someone chooses to post online has nothing to do with their employer. However, issues can arise when an employee posts something online that is relevant to their employment. This can take many forms, from comments placed on websites outside the organisation, to comments made about a customer of the business or a fellow employee. A seemingly innocent Facebook post could be uploaded by an employee in seconds but could do untold reputational damage to a business.
The starting point for all businesses is to make sure they have a social media policy in place so that employees are in no doubt about what is regarded as inappropriate, ‘postings’ online. The policy should be communicated to everyone within the organisation and employers should consider carrying out training to make sure everyone understands what is acceptable. The policy should make it clear what an employee can and can’t say when posting online. It should also detail the consequences of any breaches.
What happens if an employee breaches the policy?
Where an employee’s post is found to be in breach of a previously communicated social media policy, this is likely to give an employer stronger grounds on which to take disciplinary action against that employee. However, before commencing any disciplinary action the employer must follow the same procedure as they would with any allegation of misconduct. The effect of the post should be investigated and it should be determined whether the post is damaging to the business reputation. The findings of that investigation will form the basis of the management case against the employee. Whether those findings are sufficient to result in dismissal will be a matter to be determined, having regard to all the circumstances.
At the disciplinary hearing the disciplinary officer should consider all the evidence and where the management case is proven, all reasonable sanctions should be considered. It may be that action short of dismissal is the most appropriate response to the situation. Perhaps, further training is required or a warning should be given. Before an employer concludes the disciplinary procedure the key issue to bear in mind is, if the matter proceeded to an employment tribunal, would you be able to show that the punishment is a reasonable and fair response to the breach. It’s also important for employers to remember to keep a good audit trail of the steps that are taken in relation to the investigation and disciplinary procedure.
It can be confusing determining what is and isn’t acceptable to post on social media or how to handle the aftermath of disruptive posting. If you’re in any doubt about how to handle an inappropriate comment made online, always seek legal advice.
Ethan Peters is employment solicitor at LHS Solicitors.