“One of my employees has posted a negative comment about the company on their private Facebook page – what can I do?”

Social media can be a huge asset for a business but also a huge problem. Comments put up online can be read by large numbers of people in a very short space of time. It is therefore vitally important that an employer has a clear written policy on the use of social media by employees. This policy should relate to the use by employees of the organisation’s social media accounts and also to the employee’s personal social media accounts. Having a policy is not sufficient by itself. The employer should ensure that all employees have read and understand the policy.

It is important that a social media policy makes clear that it is unacceptable to make comments online that could negatively impact the reputation of the organisation. Employees should also be advised that offensive comments posted on social media about other people in the organisation are unacceptable and may amount to bullying. It is also important to specify that making negative comments about the organisation or people in it could lead to disciplinary action up to and including dismissal, depending upon the seriousness of the offence.

Employees often think that if their Facebook or Twitter profiles are “private” that this means that the employer cannot do anything about the comments they make online. It is important that employers explain to employees that the comments can still be read by the person’s “friends” or “followers” and so in that sense it is not private and any negative comments made by employees is potentially damaging to the reputation of the company in the eyes of the people who read them.

If an employer is concerned about something an employee has posted online, the employer should take steps to gather evidence, investigate the matter with the employee and, if necessary, take action in accordance with the organisation’s disciplinary procedure.

The severity of the disciplinary sanction that an employer can impose in each case will depend upon the nature of the comments and the actual adverse impact on the organisation and/or the people in it of the comment being posted.

The case law in this area is developing quickly. If an employee is dismissed for making adverse comments on social media, the Tribunal will have to decide if the decision to dismiss was within the “range of reasonable responses” open to the employer. It seems from recent Tribunal decisions that for employees with a clean disciplinary record the nature of the offence and the impact upon the organisation needs to be quite severe to justify dismissal for a first offence.

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.