Q: I am the MD of a small business. It has recently been brought to my attention that one of my employees has been making derogatory comments about the company on Facebook. Whilst I consider this to be some kind of breach of the company’s disciplinary policy I am not sure how to proceed because the employee’s Facebook account is personal to him and the posts were made in his own time. How should I proceed with a disciplinary?
A: Employees with more than two years’ service have the right not to be unfairly dismissed. Whilst misconduct is a potentially fair reason for dismissal, you must carry out a reasonable investigation in order to conclude, if indeed you can, that the employee is guilty of the alleged misconduct. It must also be reasonable for you to dismiss the employee on the basis of your findings.
The employment appeals tribunal has upheld an employer’s decision to dismiss an employee for posting derogatory comments about the employer on social media websites. In a small company it is entirely understandable that any derogatory comment would be taken personally. However, it is important to assess the employee’s comments objectively.
It is good that you have a disciplinary policy in place. However, as you rightly note, the Facebook entries have been done in the employee’s own time and presumably using his own computer, tablet etc. A prudent employer should therefore have a social media policy setting out what it expects from its employees in that regard. In the event of a challenge, it is more likely that an employment tribunal would uphold a dismissal for making derogatory comments about the employer on social media where the employer has made it clear to the employee what is expected of him or her, and the consequences of breach are clear.