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Wake-up call: Can I sack an employee for criticising their place of work on social media?

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Wake-up call: Can I sack an employee for criticising their place of work on social media?

Staff who post disparaging comments on Facebook will have to be taken through a formal disciplinary procedure, says Katee Dias

The problem

One of my team members 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 diners. Can I dismiss him?

The law

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. In short, this requires:

  • a letter to be sent to the employee to explain the disciplinary allegations and the potential sanctions;
  • a meeting with the employee to give them an opportunity to explain their side of the story; informing the employee of the decision (and in serious cases, this might be a decision to dismiss the employee); and
  • giving the employee an opportunity to appeal against that decision.

Expert advice

An employer should always act reasonably in the circumstances. Therefore, before coming to a decision as to whether the employee should be dismissed, the employer should reflect on whether the posting and any damage caused by it is so bad that it justifies such action. This will include the following:

  • What was actually said – saying “I think I work in a nursery and I do not mean working with plants” is very different to saying “[my manager] is apparently a c**t” (both of which were actual examples that featured in cases dealt with by the Employment Tribunal).
  • 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. Just because a person posts their comments on, say, their private Facebook page, it does not necessarily mean that they should expect it to stay private – one of their ‘friends’ could forward it on.
  • Consider your own internal guidance – many savvy employers have a dedicated social media policy in place.
  • Investigate – 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.
  • 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 clean employment record.

To-do checklist

Take the following steps:

  • Investigate the alleged social media misuse.
  • Decide whether disciplinary proceedings are appropriate given the specific circumstances.
  • If you believe that they are, start those proceedings by following the steps set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures.

To better safeguard your business against social media misuse occurring in the first place:

  • Have a comprehensive social media policy to explain how employees should behave and the consequences of non-compliance.
  • Ensure the policy ties in with existing employment documents, such as policies on anti- bulling, harassment and data protection.
  • Train employees so that they fully understand the expected standards.

Beware

If you dismiss an employee who has at least two years’ service, they might attempt to bring an unfair dismissal claim. If successful, compensation would be based on two elements: a basic award based on age, length of service and weekly pay (capped at £479) and a compensatory award based on the individual’s loss of earnings (capped at 52 week’s actual gross pay or £78,962, whichever is the lower).
Other employment claims may include breach of contract, whistleblowing or discrimination, and these can be brought even where the employee has less than two years’ service.

Contact
Katee Dias is a senior solicitor at Goodman Derrick LLP
kdias@gdlaw.co.uk

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