Dealing with an employee’s negative actions on social media

Social media sites such as Twitter, Facebook and LinkedIn are part and parcel of an employee’s business and personal life. So it’s not surprising that these are increasingly being used to air grievances about employers and fellow colleagues.

If a disgruntled or former employee chooses to post negative material about you as an employer online or about one of their colleagues (another employee), it has the potential to cause serious damage to your reputation at the click of a button.

Publication of the material in question may also amount to a breach of your organisation’s equal opportunities policy, bullying and harassment policy, dignity at work policy, email and internet use policy or policy on use of social media and/or policy on social networking.

So let’s dive in.

Social media policy

Whether or not any action you take against an employee is an appropriate course of action will depend on the specific circumstances of each case. However, an employment tribunal will in the first instance take into account:

• Whether or not there is a clear policy on the use of social media in place.
• Whether or not such a policy makes clear what standards of conduct are expected of staff.
• Whether or not the policy differentiates between conduct during working hours and outside work.
• Whether or not the policy explains the possible consequences of a breach of the policy.
• Whether or not staff have received training on the policy.

Therefore, you should ensure you have in place is a clear policy on the use of social media and social networking websites, setting out the standards of conduct expected from staff and making it clear that a breach of the policy may lead to disciplinary action, including dismissal.

If you do not have a policy, it may make it difficult for you to defend any disciplinary action you take.

Defamatory statements about colleagues

Defamatory statements made by an employee about one of their colleagues will reflect badly on you as an employer and may have a negative impact on working relationships within the company.

An employee who has been defamed by a fellow employee may wish to raise a grievance, where this occurs you should follow the ACAS Code of Practice on disciplinary and grievance procedures.

Collecting evidence

As soon as you become aware of a negative comment that has been posted on a social networking site by an employee, you should begin collecting evidence that may be referred to in any disciplinary proceedings.

The evidence may include screenshots or printouts of the offending material and records of any complaints received from customers, any evidence of damage caused by the posting, and in the case of a claimant that trades for profit, any financial loss suffered, or likely to be suffered, as a consequence.

The extent of publication should also be investigated for example whether there is unlimited access to the content or access is restricted, or how many “followers” or “friends” the employee has on the relevant social networking site.

When collecting evidence on an employee’s social media use, you must ensure that you do not disregard the employee’s privacy rights.

Removing the material

You should ensure that the material is removed swiftly, you should write to the employee (an email will suffice) putting them on notice of the rights that have allegedly been infringed, i.e. that you consider the material to be defamatory, a breach of contract, and/or a breach of Article 8 of the European Convention of Human Rights.

You should also set out the potential remedies the business may have against the employee (including an action for damages) and demand that the employee immediately remove the offending material from the website.

You should also inform the host website of the offending material. Some social networking sites, such as Facebook, have an automated reporting system on the website that enables you to report the offending material electronically as soon as it becomes aware of it.

This report will initiate an investigation by the site into the offending material. If the site agrees that the material should be taken down, this should be done within a “reasonable” timescale. However, there is no legal definition of what constitutes a reasonable timescale, and this will depend on the facts of the case.

Disciplinary action

In situations where an employee has posted unlawful material, you should follow the disciplinary procedure and comply with the procedures set out in the ACAS Code of Practice on disciplinary and grievance procedures.

In some cases, the posting of statements that are detrimental to the employer’s reputation or amount to harassment of a colleague may constitute misconduct that is serious enough to justify the employee’s dismissal, provided that the employer follows the correct disciplinary procedure.

In very serious cases, such action may amount to gross misconduct justifying dismissal without notice. However, employment tribunals can apply a high threshold for action that is deemed to amount to gross misconduct. In cases of potential gross misconduct, you should consider the employee’s previous disciplinary record, whether or not the employee apologised and took down the offending material immediately and what damage was actually caused.

Whether or not dismissal is an appropriate course of action will depend on the specific circumstances of each case. Factors that the employment tribunal may take into account include:

• Whether or not there is a clear policy on the use of social media in place.
• Whether or not the employer previously requested the employee to stop making such comments.
• Whether or not the comments were made on a public forum.
• How reasonably the employer acted in all the circumstances.

Before taking disciplinary action, employers should also consider if an employee who posts a derogatory or harmful comment online could be deemed to be a “whistleblower” and, therefore protected under the Public Interest Disclosure Act 1998. Disclosures made in this way would qualify for such protection only in very limited cases.

Former employees

If the potentially defamatory statement has been posted on social media by a former employee, you should write to the former employee demanding removal of the content and put them on notice of the causes of action that you have against them.

These could include damages for breach of contract, or possibly an injunction, if the former employee’s contract of employment and/or any settlement agreement contain post-termination restrictions, such as clauses prohibiting the disclosure of confidential information or the making of derogatory comments.