Employers have been named in posts calling out for them to take action. So, in HR terms, what should employers do if they become aware of offensive posts made by staff on their personal social media?
Advice on social media in the workplace:
The social dilemma: can employers police social media use?
Shami Chakrabarti: HR must find a sensible social media policy
Can employees be held liable for social media posts?
Act promptly – but fairly
Limiting reputational risk following such offensive posts will require swift action and, alongside considerations of legal fairness, the approach you take should be consistent both internally and externally, involving coordination in your communications, HR and legal teams.
If your corporate message is a zero-tolerance approach, you should ensure your internal processes are ready to address such a situation and that these are consistent with any press release made.
On the face of it there is a potentially fair reason to dismiss, but don’t be hasty. Remember your obligations under the ACAS Code and your internal disciplinary procedure. Carry out a fair process to limit an argument of procedural unfairness (and a potential uplift in compensation for failing to follow the ACAS Code) if the employee brings an unfair dismissal claim.
Can you suspend?
Immediate suspension pending an investigation is likely to be an appropriate response in PR terms, but suspension should be carried out fairly.
In HR terms, suspension should not be a disciplinary sanction or automatic approach and it should be applied only where appropriate to the circumstances i.e. where there is a serious misconduct and there is a risk to working relationships, a potential threat to the business, employees or property, or of evidence tampering.
Check you are entitled, contractually, to suspend and follow a fair process.
Investigate
Ascertain the facts and ensure that the circumstances, including any representations by the employee, are adequately investigated.
In a 2015 case the employee’s dismissal by LHR Airports was held to be unfair because, although it had a reasonably held belief that the employee had posted something highly offensive, it had failed to reach this conclusion after a “reasonable enquiry”.
The employee had claimed that his account had been hacked and this evidence was not considered.
Should you dismiss?
As well as misconduct, such posts may amount to “some other substantial reason” justifying dismissal in the circumstances, given reputational damage and notoriety. Even in cases of gross misconduct, consider if dismissal is reasonable in the circumstances and be consistent.
Prevention
The dismissal of an Apple Retail employee for Facebook posts was found to be fair because Apple had made clear in its policies and training materials that protecting its image was a "core value" and had drawn attention to the fact that making derogatory comments in social media was likely to constitute gross misconduct.
Social media policies should be clear on your corporate image, values and expectations, the impact of social media posts from personal and business accounts which might damage the reputation of the business and the implications of a breach. Employees should understand that they have no control over how even private posts might be screenshot and shared.
Provide relevant and regular equality training to staff. The Employment Appeal Tribunal recently determined it was not enough to treat such training as a “tick box” exercise and that training had gone “stale” after a two-year period. Maintain records of any training attended and what it covered.
Clare Gilroy-Scott is a partner and Charlotte Moorhouse is a trainee solicitor in the employment team at Goodman Derrick.
