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
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,
a letter to be sent to the employee to explain the 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
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
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
Ensure the policy ties in with existing employment documents,
such as policies on anti-bullying, harassment and data
Train employees so that they fully understand the expected
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
This article first appeared in The Caterer
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
Case law concerning the Agency Worker Regulations remains limited. We recently advised a recruitment business involved in a dispute with a "temp" and a hirer regarding who was liable for an alleged breach of AWR Regulation 5.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).