Historian David Starkey has been hitting the headlines recently after saying in an online media interview that slavery was not genocide because “so many damn blacks” were still around. This has led to him losing a number of positions including one at Canterbury Christ Church University where his role as a visiting professor was ended. Following the publicity around this case employers may be wondering what the position is when it comes to taking action against an employee in their organisation for online conduct which takes place outside work. Whilst online media interviews are unlikely to pose an issue for many employers, comments posted on social media platforms such as Facebook and Twitter may well do.
Below we have some top tips for employers when it comes to social media misconduct outside the workplace:
1. Prevention is better than cure
When employees are outside work and using their own devices, it can be easy for them to forget that what they post may have an impact on their employer or on them in the workplace. Having an appropriate social media policy in place can help to prevent issues from arising by making employees aware of this and reminding them of some of the things that are not acceptable. If the worst does happen, a social media policy which has been clearly communicated to employees can help employers when addressing the matter.
2. Any action should be reasonable and appropriate in the circumstances
Whilst it is possible for employers to take disciplinary action against employees for online conduct which occurs outside work, just like with any other type of misconduct, it’s important for employers to act appropriately. Remember that employees who have two years’ service or more can complain to an employment tribunal that they have been unfairly dismissed. Whether disciplinary action is justified, and what is reasonable as an appropriate outcome will depend on the facts and circumstances of the case.
For example:
- In Teggart v Teletech the employment tribunal found that an employee’s dismissal was fair where he had posted obscene and offensive comments regarding a colleague with the deliberate intention of creating ‘a vulgar distaste’ for her. He was reluctant to remove the postings even when he knew they had caused offence and some of the posts were made in retaliation when the victim sought to have them removed. It was found there was a clear breach of the employer’s harassment policy.
- In Young v Argos the dismissal of an employee was found to be unfair where she ‘liked’ a comment by a former colleague on Facebook which said that the employee’s manager was as much use as a chocolate teapot. The employee also personally posted that this had been the worst year in her 15 years with Argos and that she was happy her ex-colleague had escaped. The tribunal held that no reasonable employer could have concluded that the comments amounted to gross misconduct. They were not serious enough to amount to bullying and harassment in breach of the employer’s social networking policy – the comments were no more than ‘workplace gossip or routine criticism of an employer’.
It’s always important for employers to seek advice on the facts of their case before taking action.
3. A disciplinary process will still usually apply
It’s important to bear in mind that if, following a reasonable investigation into the matter, disciplinary action is appropriate it will still be necessary to follow a fair disciplinary process if the employee has two years’ service or more. This includes where an employee is suspected of gross misconduct.
In outline, a disciplinary process will involve:
- Formally inviting the employee to attend a disciplinary hearing (a number if requirements will need to be met here including setting out the allegation(s) against the employee and providing copies of the evidence)
- Holding a disciplinary hearing
- Giving a written outcome and a right of appeal
If an employee does not have sufficient service to claim ordinary unfair dismissal, it may be possible to take action without following the usual disciplinary steps. However, as there are many claims even short serving employees can bring it’s always important for employers to seek advice on the facts of their case before taking action.
If you are concerned about an employee’s conduct, you should seek advice from Kingfisher Professional Services Ltd as we are here to help.