Social media misconduct: can we dismiss an employee for damaging our reputation?
We're often asked to advise on disciplining employees who have made inappropriate comments on social media and such cases are never far from the…
We are often asked to advise employers on disciplining or dismissing employees who have made inappropriate comments on Facebook or Twitter and it seems that cases involving the misuse of social media are never far from the headlines.
New case-law: Facebook dismissal was harsh but fair
In the recent case of Plant v API Microelectronics Ltd an Employment Tribunal held that the dismissal of a long serving employee over derogatory comments she made about her employer was fair.
Mrs Plant had been a machinery operator for her employer for over 17 years and had a completely clean disciplinary record for all of that time. When her employer announced a possible premises move, she took to Facebook commenting "PMSL [p***ing myself laughing] b****y place I need to hurry up and sue them". Her employer held this to be in breach of their social media policy (which prohibited posting comments online that could damage the reputation of the company) and dismissed her. The Employment Tribunal accepted that this might be viewed as harsh, but found that dismissal was within the band of reasonable responses, as the employee had clearly breached the policy and had failed to provide an adequate explanation for doing so at the dismissal or appeal hearings.
This is an encouraging case for any employer seeking to protect their brand and reputation online. However, despite the robust stance adopted by the Employment Tribunal in this particular case, it is still important to handle social media dismissals with thought and care.
How do I tackle a 'social media' dismissal?
The key in cases involving inappropriate comments made by employees on social media is to treat them like any other form of potential misconduct, ensuring that there is a proper investigation and that any disciplinary penalty is supported by adequate evidence of wrongdoing and is proportionate.
In most cases, it is likely to be more appropriate to tackle this type of behaviour as a conduct issue (although just occasionally it might be for some other substantial reason). However, this will always be fact specific. If conduct procedures are used, careful consideration should be given to the wording of any charge.
Is dismissal likely to be fair?
In determining whether dismissal is a legitimate course of action, and is likely to be judged as fair by an Employment Tribunal, the following factors are likely to be relevant:
- The nature of the employee’s job;
- The employee’s seniority within the company;
- The seriousness of the alleged misconduct;
- The nature of the employee’s organisation;
- The terms of your social media policy;
- Whether or not any confidential information has been disclosed;
- The risk of reputational damage to you;
- The likely impact on the employee’s job; and
- Any mitigating factors, such as the employee’s service record, co-operation during the disciplinary process and contrition.
The measures taken against an employee must, as mentioned above, be proportionate to the seriousness of the offence. Derogatory comments made about the workplace may vary in severity from the mildly embarrassing to the deeply damaging. It is important to respond in a measured and objective manner and to avoid rushing to an emotional or defensive decision (no matter how inappropriate the comments or how great the perceived business risk).
Risk to reputation
Stepping back and making an objective assessment is especially important when considering potential or actual reputational risk. In some cases it may be appropriate to charge the employee with causing reputational damage to the employer and it is possible for dismissal on this basis to be fair. However it is important to consider the following before charging an employee with causing reputational damage or bringing the business into disrepute:
- How many people, including customers and clients, saw the posting?
- Did anyone complain about it?
- Could your organisation be identified from it or from the employee’s profile?
- Were any derogatory remarks made about your organisation, your clients/customers/service-users or colleagues?
Again, it is important that your response to comments made by an employee about the company or its clients on any social networking site is proportionate to the perceived offence. The risk is that an over-reaction will do more reputational harm that the original comments.
In our experience, social media dismissals often come unstuck when an employer rushes to charge an employee with actually damaging the reputation of the company or its relationship with clients, when there is no evidence that any such damage has in fact taken place.
Ideally, in order to justify the dismissal of the employee, there should be evidence of actual (rather than imagined or potential) damage to your reputation or business. However if you are considering dismissal because of the potential reputational damage which could have been done by a post, even if the damage did not occur (or it cannot be identified that it did), make sure that is precisely what is alleged. Consider in your findings why such a serious sanction is merited by something which did not have the same adverse consequences as it could have. While it’s important not to set out on a fishing expedition and trawl for evidence of damage, carefully consider the factors above and outline how and why the employee’s comments have harmed you and why this is not acceptable.
It is crucial to build any disciplinary process on the solid foundation of a carefully worded charge that reflects what has actually occurred. If you are ever in doubt please do not hesitate to get in touch and we will be happy to advise you.
Louise Singh (firstname.lastname@example.org) is a Professional Support Lawyer supporting the national Employment, Pensions and Immigration Team and is based in Liverpool. If you have any questions, please get in touch with Louise or speak to your usual Weightmans contact.