The Issue
Reliant on a youthful workforce that has grown up with instant news and social media networks employers within the hospitality sector are frequently challenged by on-line comments that often overstep the mark. Often made outside of the workplace and in the employee's private time these remarks can be damaging to an employers business and difficult to deal with.
We have been approached by a number of clients within the catering sector for advice on how they should handle employees who have brought their business in to disrepute and whether they can be dismissed.
The Legal Position
When dismissing an employee, it is important that it is for a potentially fair reason and that the employer has acted reasonably in treating this reason as the basis for dismissal.
Employers are given a relatively wide scope for such dismissal. If they feel that an employee has prejudiced their business or reputation, or has damaged trust and confidence, then there is a strong possibility that dismissal is a legitimate option.
In a recent incident we were asked to advise on the actions of a marketing manager of a hotel who specialised in wedding functions. This manager posted comments on Facebook stating that her workplace was a building site and to make matters worse she posted pictures of the on going building works on to the website. On investigating the matter our client considered that this matter only warranted a warning on the understanding that the manager removed the offending items from the website.
However, in a recent tribunal case a pub manager was considered to have been fairly dismissed by his employer having made derogatory Facebook entries that named a number of customers who had been abusive to him. The tribunal found that her dismissal was fair on the grounds that, whilst she had a right to freedom of expression, her public statements had damaged the pub's reputation. There had been a thorough disciplinary process and although the tribunal said that it would have been minded to issue a final written warning, dismissal was within the range of reasonable responses.
A Reasonable and Practical Approach
Employers must be aware of the need to take a reasonable view of employee actions and be flexible in their approach. It is clear that the power of social media is not always understood by employees and once this is pointed out to them issues can often be resolved quickly. Generally, employment tribunals do not look favourably on employers who are not flexible and not prepared to fully investigate the issues of concern.
It is also relevant that the same actions of different employees may have different effects on a company's reputation. The drunken high-jinks published on the net of a junior bar manager whilst socialising may only warrant an informal chat from HR. Whereas the same actions a senior manager with a public presence might be reasonable grounds for disciplinary action if it is considered that he brought the employers business into disrepute.
Internet and Social Media Policy
Many of these incidences can be avoided by the preparation and communication of clear policies about what could happen to employees whose actions may reflect badly on the company through the impact of out-of-work activities. Such a policy should clearly outline the actions that may harm the reputation of the company and state the dangers of seemingly casual on-line banter. Managers involved in disciplinary procedures need to be trained in how to assess the extent of the potential damage that its' employees can cause.
Potential Risks
It is not possible to draw up a rigid set of rules to govern this type of behaviour. Be prepared to be flexible and mindful of the actual circumstances surrounding each individual situation.
Dismissal is a drastic step. If this is a consideration, ensure that you take a realistic view of the actual damage to the business and not just what could have happened. Consider whether a written warning may be a suitable alternative.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
