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27th June 2017

Ask the Expert – Social media and disciplinary action

Question:

“One of our employees has made derogatory comments about the organisation on social media. Are we able to take disciplinary action in response to this and, if so, what sort of sanction is appropriate?”

Answer:

Disciplinary action will most likely be an option here. Indeed, disciplinary warnings and dismissals because of conduct related to social media are now common, with many employers taking a more vigilant approach to defending their reputation online. The most common allegation in such circumstances is that the employee’s comments may bring the organisation into disrepute.

As a first step, think about the actual words used. If for example the employee has made a disparaging comment about the organisation’s practices, or told a lie that could be damaging to it, formal action is likely to be more appropriate. On the other hand, comments such as ‘had a bad day at work’ could perhaps be better dealt with by having an informal chat with the employee to remind them that social media is not the place to vent such frustrations.

It’s also worthwhile considering whether the employee’s comments could be linked to the organisation. Did they mention the organisation by name in the post(s) in question, or have they listed it as their place of work on their profile? Not having done so doesn’t necessarily mean that you can’t take disciplinary action, but further thought may be needed as to whether you can reasonably argue a risk of disrepute. Try an online search and/or searching on LinkedIn to see whether a third party could easily make a link between the employee and the organisation.

Next, take a look at your own policies. Do you have a social media policy that outlines the behaviours expected of employees? Does your disciplinary policy state that a risk of disrepute to the company from social media posts could result in dismissal? If so, taking formal action, even up to dismissal, could be reasonable. If not, formal action may still be possible, but you may wish to consider a sanction short of dismissal instead (as well as a review of your policies!)

Having considered those points, if you wish to take formal action against the employee, a fair procedure should be followed. Start with an investigation meeting with the employee to ask them about the post and why it was made. If you are satisfied after that meeting that there is a disciplinary case to answer, you should clearly set out the allegation(s) to the employee and provide them with the relevant evidence. Finally, an appeal should be allowed against any warning or dismissal.

In relation to sanction, remember that the appropriate sanction will always depend on the circumstances and there should be no ‘one outcome fits all’ approach to disciplinary action. The words used, the potential impact on the organisation and your internal procedures are all factors to be considered.

In a similar vein, avoid the trap of assuming that a finding of gross misconduct automatically means that dismissal is merited. Issues such as the employee’s length of service, their previous disciplinary record and anything they said in their defence at the hearing (and appeal) should be taken into account. A knee-jerk reaction even to the most blatant gross misconduct could result in a finding of unfair dismissal.

If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.

27th June 2017