We are hearing more and more of employees who are dismissed from
their employment because of private postings made on their own
social media sites. The actor from Coronation Street who was
recently dismissed by ITV because he made discriminatory postings
on his personal Twitter account is a prime example of this.
Set out below are some factors that an employer should consider
when faced with this type of situation:
Consider 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 "[manager]
is apparently a c**t" (both of which are real examples
featuring 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, does not
necessarily mean that they should expect it to stay private; one of
their "friends" could forward it on.
Look at internal guidance and policies – many employers
have a dedicated social media policy in place which sets out
guidelines on what is and is not permitted use. If you do not
already have such a policy, now is the time to put one in
Think through the 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
Conduct a thorough investigation – 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 actually make the offensive posting.
Follow the ACAS Code of Practice on Disciplinary Processes
– this sets out how to run a fair disciplinary procedure,
such as writing to the employee in advance to set out the
allegations and allowing them to be accompanied at a disciplinary
In short, an employer must act reasonably. They should therefore
reflect on whether the posting and any damage caused by it is so
bad that it justifies the employee losing their job before coming
to a decision.
What happens if the employer has dismissed unfairly?
The employee may have a potential claim against the employer.
The most likely claim where an individual has at least 2 years of
service, is an unfair dismissal claim. 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 (essentially how long it
would take them to get a comparable job, but this is capped at
either 52 week's actual gross pay or £78,962, whichever
is the lower).
Other employment claims may include breach of contract,
whistleblowing or discrimination (depending on the circumstances)
and these can be brought even where the employee has less than 2
How can an employer better protect its business from social
The first step is to have a comprehensive social media policy in
place to outline how employees should behave and the consequences
of non-compliance. This should tie in with your existing employment
policies, such as your anti-bullying and harassment policy and your
disciplinary rules and procedure. You should also check that you
have the right to monitor your employees' postings.
Next you should train your employees so that they understand the
standards expected of them. Keep records of when they were trained
and what they were trained on, as this could be useful evidence to
help you defend any subsequent employment law claims resulting from
their dismissal for social media misuse.
To find out more about social media dismissals, please
download out recent report on social media in the workplace
This article first appeared in QuickBite magazine.
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.
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Goodman Derrick's employment team will be hosting a workshop on HR horrors and how to deal with them. This practical session, on Wednesday 10 May 2017, will use case studies to deal with some of the tricky HR situations often faced by employers.
The session will be of interest to anyone involved in growing a hospitality business, whether that is in bars, restaurants, hotels, spas, gyms, related technology or consultancy.
As well as providing a relaxed setting for you to discuss your challenges and network with peers, you will also take away some key action points for the next phase of your business journey, be that growth or a successful exit.
The Court of Appeal has held that where a contract of employment lacks a provision for when notice of termination takes effect, it is effective from when the employee personally takes delivery of the letter containing notice.
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