June 19, 2015

Dealing with derogatory comments on Facebook

A staggering 59% of the UK population have active social media accounts, with 32 million using a mobile device to access.

According to a We Are Social article, the average daily use of social media amounts to 2 hours and 13 minutes – more than half the time that people in the UK spend on the internet. Facebook is the top active social platform with 43% on the network.

With the high level of access and usage of Facebook on a daily basis, it is no wonder that employers are increasingly faced with the question of what action to take against employees who make derogatory comments about their business on the social media site.

An employee may try to defend their actions by suggesting that the material they post on Facebook is private because of their ‘privacy settings’.

However, the Tribunals’ message appears clear: once your workplace comments are posted on a social media site, they transcend the cloak of privacy regardless of your personal settings and become “public” and therefore open to scrutiny.

In the case of Weeks v Everything Everywhere Ltd ET/2503016/2012, Mr Weeks made frequent references to the workplace as “Dante’s Inferno“.

He was subsequently reported for being in breach of the company’s social media policy and because the comments were influencing other staff who were also his online friends.

Mr Weeks was given warnings, but continued to make comments about how he disliked where he worked, even though the company wasn’t mentioned by name.

He failed to stop posting adverse comments and even made harassing and bullying Facebook comments against the colleague he suspected of reporting him.

The Tribunal held that Mr W’s dismissal as a result of his Facebook postings was fair.

However, derogatory comments on Facebook will not always justify dismissal. In the case of Whitham v Club 24 Ltd t/a Ventura ET/1810462/10, Mrs Whitham, a team leader employed by the respondent, engaged in an exchange of messages with colleagues on Facebook after a difficult day…

“I think I work in a nursery and I do not mean working with plants” and “Don’t worry it takes a lot for the b****** to grind me down”.

Her messages were only visible to her 50 Facebook friends.

The company took the view that these comments could damage its relationship with its main client and suspended her and issued disciplinary proceedings. It did not seek the views of the client and thus the relationship could not be said to have been affected by Mrs Whitham’s actions one way or the other.

The Tribunal held that this was an unreasonable failing on the part of the employer and for this and also the fact that the employee had a clean disciplinary record, some serious personal issues which provided mitigation for her actions.

The company’s client was not mentioned or impacted and she had immediately apologized. They held that a reasonable employer would not have dismissed in this situation. This case highlights to employers the importance of thoroughly investigating matters involving social media, and to resist overreacting to negative comments.

It is not enough for an employer to simply argue that an employee has breached its social media policy. A tribunal will look at the wider circumstances and many competing factors when deciding on the reasonableness of a dismissal decision such factors include:

  • The nature and severity of the comments made by an employee
  • The subject matter of those comments
  • The extent of the damage caused to an employer’s reputation
  • Whether there has been a breach of confidentiality
  • Whether the employer has a social media policy and whether employees have been given training in that policy
  • Whether the comments made by an employee were made during working hours and/or using the employer’s equipment
  • Whether there are any other mitigating factors.

Employers need to be aware that any decision to dismiss an employee for alleged social media misconduct should be based on a fair and unbiased consideration and assessment of these factors, in order to minimise the chances of dismissing unfairly.

If you need advice on this topic, simply contact us and we’ll be happy to help.

By Donna Chadbone

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