It’s a pleasant morning at work, unusually you have the chance to enjoy a coffee and a quick glance at the newspaper and there looking back at you is a picture of one of your employees under the headline of racist behaviour by football fans. What should you do and perhaps, more importantly, what can you do?

Employee conduct outside of the workplace can have a serious effect on your business particularly when there is the possibility, or probability, of your clients becoming aware of that conduct.

  • How would your clients react to disparaging remarks made about your company?
  • Would your client’s reaction be different if the disparaging remarks are made by your employees?
  • What would the reaction be if your employees have made disparaging remarks about your clients?

Whilst it is relatively rare to find your employees’ conduct being reported in the news, the expansion in the use of social media has led to an expansion in information that is in the public domain.

Consider this situation, a group of employees in the pub on a Friday night, they may (and most probably do) make disparaging remarks about their employer and even about a client that they consider to be “difficult” or “too demanding”. Typically, “my boss is an idiot and doesn’t know what he is doing” or “client X is a complete plonker”. OK, it’s not uncommon, and as long as the remarks are not publically broadcast, no real harm done, it’s just letting off steam. So far so good.

But what if the remarks are made via social media? The status of the remark is then elevated into being information in the public domain.

It is not difficult to imagine a client’s response to offensive posts being broadcast to the world on Facebook or Twitter, or some other social media platform. The question that arises is: “what systems should an employer have in place to prevent employees from making offensive remarks”?

What can be said with certainty is that the protocols to be followed can be accurately described as a minefield.

Most disciplinary policies state that conduct likely to bring the company into disrepute is likely to be a gross misconduct offence, but recent cases have shown that a standard disciplinary policy does not provide an employer with adequate protection.

It’s always sensible to have your policies checked by a professional advisor. Whilst you are at it, ensure that your social media policy is up to date and robust enough to deal with current issues.

Remember, there are key points that are essential to cover dismissal for conduct occurring outside of the workplace. These key points should be clearly set out in an appropriate policy. It is also advisable that any such policy is communicated to employees so that they are fully aware of their obligations and the potential implications of such misconduct.

A recent case at the Employment Tribunals involved an employee who had put on an Osama Bin Laden mask at work and took a ‘selfie’. The employee then used that photo as his profile picture on Facebook. The concern for his employer was that the company could easily be identified in the photo as the company name/logo was visible in the background. The employee was dismissed for gross misconduct. However the Employment Tribunal ruled that the employee had been unfairly dismissed as the company did not adopt a fair disciplinary procedure and did not have a comprehensive Social Media Policy in place. It is never sufficient to simply implement universal or standard policies.

The case illustrates that cases of misuse of social media involve a complicated and forensic analysis of the following questions:

  • Whether or not the employer has a Social Media Policy and if so, what is the precise wording of that policy?
  • Does that policy enable the employer to rely upon a breach of the policy to dismiss?
  • Whether employees have been made aware of the policies?
  • The nature and seriousness of the employee’s misuse?
  • Actual or potential damage to customer relationships?
  • The disciplinary procedure followed by employer?
2017-12-19T13:43:27+00:00March 9th, 2015|
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