Many businesses have a social media policy in place and clearly communicate this to employees to reduce the likelihood of issues arising. However, despite a business’s best efforts sometimes incidents do occur, one of the areas that businesses can find particularly tricky to know how to deal with is ‘online misconduct’ – conduct involving social media that takes place in an employee’s own time and on their own device, but which relates in some way to the business / workplace.
We take a look at three things every business needs to know:
- What should my first step be when dealing with suspected ‘online misconduct’?
- What are some of the common pitfalls to be avoided?
- How do I carry out a disciplinary process?
1. What should my first step be when dealing with suspected ‘online misconduct’?
‘Online misconduct’ can understandably be an emotive issue for businesses – the stress and worry that the employee’s actions, comments etc are out there for all the world to see, but it’s important to keep things in perspective and bear in mind that ‘online misconduct’ should usually be approached in the same way as any other conduct issue.
In most cases, if misconduct is suspected the first step will be to carry out a full and thorough investigation into the matter so you have a clear and accurate picture of the situation. If it is appropriate to take disciplinary action, a disciplinary process should usually be followed.
However, as you may already be aware, if an employee has short service and you are looking to dismiss, you may be able to do so without following the usual disciplinary process as the qualifying period for ordinary unfair dismissal is currently two years’ service. Even if your employee has short service it will be important to get in touch for advice on your situation before acting as not all claims require an employee to have a certain length of service, such as those for automatic unfair dismissal (e.g. whistleblowing) and discrimination, and an employee can gain two years’ service sooner than you may expect due to the way this is calculated.
2. What are some of the common pitfalls to be avoided?
There can be a lot to think about when dealing with ‘online misconduct’, some of the key areas highlighted by case law as pitfalls to avoid include:
- Classifying an employee’s actions as gross misconduct when on a reasonable assessment of the situation the conduct in question falls far short of such seriousness
- Not following a fair procedure before dismissing an employee who has sufficient service for protection from ordinary unfair dismissal. Bear in mind that not only can this affect the fairness of a dismissal but it can make the claim more costly to lose as an employment tribunal could also increase the compensatory award by up to 25% for an unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievances
- Not acting reasonably in the circumstances. It will come as no surprise that there can be a wide spectrum of online misbehaviour – from that which merits only ‘a quiet word’ to informally deal with the issue, others where disciplinary action and some form of written warning are appropriate right up to instances which can merit dismissal. It is important to assess the situation on its facts when determining what action is appropriate, and if disciplinary action is taken what outcome is fair and reasonable. Remember we are here to help, so please get in touch for advice and support.
3. How do I carry out a disciplinary process?
In brief outline, following a disciplinary process will usually involve:
- Inviting the employee, in writing, to attend a disciplinary meeting, enclosing the evidence and advising them of their right to be accompanied. Bear in mind that when it comes to inviting an employee to attend a disciplinary meeting it is important to make sure the allegation(s) are carefully and appropriately drafted. We can help you with a disciplinary invitation so please do get in touch. Remember, that an employee should be given an appropriate amount of notice of a disciplinary meeting – we usually recommend five calendar days as being reasonable
- Hold the disciplinary meeting
- Following the meeting, give the employee a written outcome with a right of appeal
As it can be all too easy to make a misstep, it is important for businesses to seek advice before taking action.
Have a HR matter you would like assistance with? We are here to help.