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 place.
- 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 employment record.
- 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 hearing.
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.
To find out more about social media dismissals, please download out recent report on social media in the workplace here.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.