Below is a reply to a question we received online regarding a problem faced by a client following a post on social media. If you have any questions, please call the number above, the form to the right or use our Live Chat option.
Dear Paul
I recently received a written warning due to comments that I had written on Facebook. It involved a post to a colleague and related to a football match that had been on TV that day. There was swearing in the comments however there was nothing malicious and no work related matters were raised. I was warned about my future conduct on social media.
I have now received another invitation to a disciplinary meeting and warned I could lose my job. The meeting relates to another post on Facebook in which I made fun of a different colleague over a new haircut. Again, there was swearing but it was all in good humour.
I am worried that I may be sacked. Is my employer entitled to use comments made on my personal Facebook page in this way?
Kind regards
Stephen
Dear Stephen
Employees are increasingly finding themselves facing disciplinary action in their jobs due to posts on social media.
The starting point for any assessment of whether an employer is entitled to bring disciplinary action for post in social media is to consider whether the employer has a social media policy. If such a policy exists, you should then consider if and when it has been brought to your attention before considering what is said in the policy.
Employers will often run through social media policies with staff and ask them to sign something to confirm it has been read. On the other hand, some employers will have a policy yet not communicate it to their staff whereas some employers may have no such policy at all.
In an employment tribunal claim, the test of whether an employer has acted fairly will generally be whether they have acted reasonably taking into account all of the circumstances. The employer will be expected to carry out a full investigation, including allowing you to put your side of the case, before reaching any conclusions.
On the face of it, taking disciplinary action against a member of staff for comments on a football match directed to another employee may seem unreasonable.
However, you have also admitted to swearing therefore the nature of the post and how it made your colleague feel need to be considered. If there was an aggressive edge to it and it made your colleague feel uneasy in any way or complain to management, then it is possible that the employer may be able to convince a tribunal that a warning was a necessary step. This will particularly be the case if a social media policy does exist and makes reference to how staff are expected to conduct themselves generally and towards their colleagues on social media.
The same considerations will also apply to the second post and your forthcoming disciplinary hearing. The key issue will be the nature of the posts. Consideration should be given to how the posts would be perceived by a neutral party as well as how they were actually taken by the person they were directed at. Again, if a complaint has been raised, the case for disciplinary action will increase.
The terms of the earlier warning will also come into play. As there was a specific reference to future conduct towards on social media, there is a possibility of further disciplinary sanctions.
If, on the other hand, it is apparent that the posts were not offensive and were not perceived so be so by the other person, further disciplinary action may be excessive.
Paul
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