When are employee social media interactions a work matter?

Behaviour outside work

As an employer, it’s important to understand when an employee’s private social media interactions can be considered to become a work-related matter, requiring you to consider taking disciplinary action.  The spotlight of the national media fell upon one such case very recently, following the Euro 2020 football tournament.  In this incident, a Savills employee was accused of sending racist tweets¹ to England’s black players, in the aftermath of their defeat to Italy in the final. In this blog, we outline examples of employee behaviour, conducted outside the workplace, which could be deemed as gross misconduct and become a work matter. 

What misconduct behaviours could lead to employee dismissal?

From an employer perspective, when does employee social media engagement become a work matter requiring you to take disciplinary action?  Over the years, there have been a number of employee misconduct cases involving social media usage, which have led to a fair dismissal. Game Retail Ltd v Law² is one such example. The claimant opened his Twitter account for personal use.  He began to use it for limited work purposes.  After a colleague notified the employer of his tweets, the employer found them to be offensive and threatening, and consequently dismissed him on the grounds of gross misconduct.

However, the Employment Appeal Tribunal (EAT) found the dismissal to be unfair because the employee made no reference to the company in his tweets, the situation was also exacerbated by the fact that the employer did not have a social media policy.

The case was referred to another tribunal and, in the end, due to the tweets being in the public domain, the employer was found to have fairly dismissed the employee.

Under the Employment Rights Act 1996, misconduct is a potentially fair reason for dismissal.  Examples of misconduct can include the following:

• Inappropriate use of social media, including rants about an employer, using blog posts and or images
• Involvement in football hooliganism or other violent behaviour outside work

What are the rules?

If an employee is either charged with, or convicted of a criminal offence, this is not usually a reason to undertake disciplinary action.  Employers would need to consider the following:

• Did the employee’s misconduct bring the employer’s reputation into disrepute?
• Did the employee’s actions affect their ability to undertake their job?

If both the above points were applicable, and an employer considered the employee’s behaviour as ‘gross misconduct’ and wanted to explore the dismissal option, we’d recommend that employers adhere to the Acas code of practice on disciplinary and grievance procedures.

It could also be that the employee’s behaviour is not deemed misconduct, but the employer’s trust and confidence in the employee has been damaged, in which case a dismissal for ‘some other substantial reason’ (SOSR) could be considered.  Again the Acas code should be followed and we would always advise seeking advice before taking action for SOSR.

Acas formal disciplinary procedure

As an employer, you must follow a fair and reasonable procedure.  This entails conducting a thorough investigation to ascertain the facts and holding a formal disciplinary hearing.   Employers must consider the following:

1. Can the employee continue with their work, following the misconduct?
2. How relevant is the conduct to the workplace and is there any risk to the company’s reputation?
3. Would the conduct jeopardise working relationships with colleagues and clients?
4. What are the necessary steps to enable the employee to remain in employment, without harming the business.

The employee should be advised of the allegations against them prior to the hearing, and be allowed sufficient time to respond.

The right to be accompanied

Employers should be aware that the employee has the right to accompaniment. The companion could either be a colleague, a trade union representative, or an official employed by the trade union. If the employee opts to have a companion, they must inform the employer who that companion is, as soon as possible.

All parties require sufficient time to prepare for the meeting, e.g. to examine papers and evidence.

At the disciplinary meeting

The disciplinary meeting is an opportunity for employers to explain the allegation, ask further questions and present any evidence.  We recommend that during the meeting, employers should remain impartial and exhibit empathy. It’s important to take notes or appoint someone to do this.  At West HR, we have helped many companies through this process.  We recognise that it’s a stressful situation for all parties involved and sometimes it’s useful to have someone involved who is impartial and independent.

Always give the employee an opportunity to explain their side of the story, ask questions and to present any evidence they’ve gathered.  Be mindful that their companion is entitled to take notes, speak for them and have discussions with your employee during the meeting. They cannot answer questions on the employee’s behalf or prevent anyone else from explanations.

At the meeting, go through the evidence carefully, summarise the key points and end it by confirming the next steps (this could be another meeting, or an indication of when they can expect a final decision).  The employee should be given copies of the meeting record and any notes.

Depending on how complex the situation is, you may need additional time to investigate, prior to making a fair decision. In some cases, the meeting may need to be adjourned and reconvened on a later date.

What employers can do to protect themselves

To prevent any future issues, and to protect your company from liability, we’d strongly advise that employers should frequently review their employee handbook and code of conduct policy, perhaps providing examples of behaviour that would constitute misconduct and gross misconduct. Update your social media policy to include what is appropriate and inappropriate. Review your disciplinary procedures to ensure they follow the Acas code.

Lastly, make sure that your policies are communicated to all employees.

At West HR, we can develop or update the policies and procedures in your  . We’ll make sure that they are relevant and comply with employment legislation. For advice on your employee handbook or formal disciplinary procedures, contact us today for a confidential discussion.     

References:

• https://inews.co.uk/news/savills-employee-accused-of-racist-tweets-against-england-euos-2020-team-claims-someone-else-was-tweeting-1100069
• https://www.personneltoday.com/hr/misconduct-outside-workplace-five-key-employment-cases/