Dealing with employees bad-mouthing the organisation on Facebook

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Is your disciplinary policy fit for purpose?

In the recent scandal involving Lord Sewel’s behaviour when not in the House of Lords, the peer waited several days before resigning following the media frenzy. The incident may have caused employers to question whether their own disciplinary policies cover an employee’s activities outside work, including where this brings the organisation into disrepute.

‘Bringing the employer into disrepute’ usually means the employee acting in a way which is incompatible with the employer's public profile or values, or doing something which would ordinarily be offensive: for example, sexual misconduct or drug-taking which reflects badly on the employer by association. Behaviour which could bring an employer into disrepute in one industry, or from one particular employee, may not be classed as such for others. It is generally not a good idea, however, for an employee to make derogatory statements about their employer in the public domain, including via social media.  

There have been numerous dismissals because of comments made on Facebook, including one involving a long-serving employee dismissed for remarking that his work was a "shambles" and another dismissed for naming his employer and stating that he couldn't "wait to leave because it's s**t". Such derogatory descriptions do little to enhance an organisation’s reputation. Employers need to be careful though. A dismissal in the case Whitham v Club 24 was held to be unfair because the derogatory comment posted on Facebook was relatively mild and there was no evidence of any actual or likely harm to the relationship between the employer and its client.

What if an employee has been involved in an activity outside of work which is contrary to the employer's values but which is not directly linked to the employer as such?  The law firm Clifford Chance took no action against one of its trainee solicitors who had uploaded a video of himself blaming the Paris Charlie Hebdo terrorist attack on non-Muslims, stating that the views expressed were ‘personal’ and not those of the firm.  The firm’s response may have been different if the video had been made by a more senior individual.  If an employer is considering disciplinary action, the focus must be on whether the employee’s conduct directly affects the employer's reputation. The position the employee holds in the organisation is also relevant.

The modern day workplace is constantly evolving. To ensure that they keep pace with technological change, employers should review their disciplinary policy every 6-12 months to avoid missing developments. They should also make sure the policy states that the examples of gross misconduct listed are ‘non-exhaustive’ and that the policy may be modified from time to time.

It is possible to ‘future-proof’ policies by referring not only to current named technologies such as Facebook and LinkedIn but by including terms such as ‘other social and professional networking media’. The policy should make it clear that bringing the employer into disrepute includes comments made via social and professional networking media and covers activities both inside and outside work.

Most disciplinary policies will be ‘non-contractual’ - this enables employers to make changes to the policy without the need for consultation with staff. However, employers should communicate any changes made, and it is good practice to publicise the amendments via an email to staff or an intranet announcement. Employees should be provided with a copy of the revised policy or told where they can readily access it.

Organisations need to remember to publicise the amendments to those who are absent or returning from long-term absence. Employers should ask staff for a written acknowledgment that they have read and understood the revised policy even if the amendment is relatively minor. Where the changes are more extensive, employers could provide an accompanying explanatory note or offer further explanation in person if required.   

Employers with contractual policies will need to take extra care and consult with employees before making any changes.

This article was originally published on CIPD People Management website.