14 May 2019
If an employee slates your business on social media, would that be gross misconduct? Probably. If an employee harasses a colleague online, does that count as gross misconduct? Definitely. But what do you do if an employee posts something offensive that has nothing to do with your business…?
How to lose your job in 280 characters or less
In May 2019, the BBC radio presenter Danny Baker posted a tweet about the Duke and Duchess of Sussex’s son, Archie.
His tweet came from his personal social media account. He posted it in his own time. And it had nothing to do with the BBC. But many people, including his bosses, found it offensive. Soon after, he was fired.
And it’s not just media personalities who need to worry about how their tweets are perceived. Over 70% of the UK population uses social media. That means your employees, your customers, and the general public can see almost anything your staff post online.
So it’s no surprise when bosses want to take action against staff who post offensive comments. At best, it causes embarrassment. At worst, it can damage your reputation and lose you clients.
But there’s a grey area when it comes to what you can and can’t do about personal comments on social media. If you get it wrong, you could face claims of unfair dismissal.
Your business, your rules
According to a recent employment tribunal appeal, you can dismiss an employee for embarrassing your company if it breaches an employment policy.
In short, if you want to safely challenge any comments staff make online, you need a watertight social media policy.
- Compromise or disclose confidential or sensitive data.
- Damage your business’s reputation or brand.
- Breach copyright or data protection.
- Contain libel, defamatory or illegal content.
- Engage in bullying or harassment.
- Interfere with your work commitments.
- Use your business name to promote products or political opinions.
Remember, your staff need to read and sign your social media policy. Otherwise, it may not protect you from claims of unfair dismissal.
How to use your social media policy
A policy alone isn’t enough to protect your business. You have to use it in the right way.
A good example is the UK retail company Halfords. In 2011, it dismissed an employee for starting a Facebook group complaining about the number of weekend shifts he had to work.
But even though Halfords had a social media policy, an employment tribunal found that the dismissal was unfair and it ordered Halfords to pay out £11,350 in compensation.
Why? Well, one reason was that the tribunal felt the punishment was disproportionate to the offence. Which is why, when judging if a social media post counts as gross misconduct, you need to focus on the impact.
That means not only looking at what your employee did but how it affected your business, other employees and customers.
Examine each individual breach and determine the likely impact. You need to consider a range of factors, including:
- The nature and seriousness of the comments made.
- The subject matter of the comments.
- The damage to your reputation.
- How and when the employee made the comments.
- Any mitigating factors, such as if your employee’s judgement was impaired due to illness.
So, can I sack employees for their personal tweets?
The short answer, as Danny Baker found out, is yes. But there’s a lot to consider.
Has your worker breached your social media policy? Was your policy clear about their responsibilities? Did their actions cause harm to your business?
Social media has changed the world in a very short space of time. And businesses and lawmakers are struggling to keep up. That’s why Croner supports businesses like yours to protect you from online harm.
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