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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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A co-worker has been excluded insulting comments about

Customer Question

A co-worker has been excluded for posting insulting comments about another worker on Facebook. She has been excluded for alleged gross misconduct pending an investigation. She has resigned for fear of dismissal.
She was never given an induction and particularly was not introduced to the organisation's social media responsibility which states that it is the responsibility of all managers to ensure their staff are fully aware of the policy; as such she was not aware of privacy settings on Facebook. The organisation has reacted disproportionately to this calling it gross misconduct rather than misconduct which would not have warranted exclusion and may well not have triggered her resignation. Her department are very keen to see her reinstated. Can we challenge the organisation on procedure?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. how long did she work there for?

Customer: replied 1 year ago.
She has worked here for 2 years I think, and just been promoted following retirement of the previous secretary.
Customer: replied 1 year ago.
My earliest e-mail from her is february 2014
Customer: replied 1 year ago.
I will continue with the written response as I have paid £26 already
Expert:  Ben Jones replied 1 year ago.

That's not a problem, this is just an option if you wanted it. I will reply in writing shortly

Expert:  Ben Jones replied 1 year ago.

Whilst there is nothing stopping you from approaching the employer to lend your support to the worker and try to make your feelings clear, legally you cannot do much to challenge them. You are not party to this dispute – this is between the employee and the employer. So the only person who can challenge the employer’s actions is the employee.

Whilst the lack of a policy or the failure to communicate a policy will not in itself excuse the employee’s actions, it may indeed reduce the severity of the allegations against her. It is clear that what she did is misconduct because making insulting remarks about a colleague on social media can be a disciplinary matter even without a policy on the subject in place.

So it is now down to her to try and challenge this and if you wanted to, you could support her by raising your views on this with the employer, although there is no legal obligation on the employer to take these into account.

This is your basic legal position. I have more detailed advice for you in terms of the law on social media posts and how an employer should deal with them, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks. We are acting at the moment as whistleblowers of bad management to the head of HR. We will then encourage the co-worker to lodge her own challenge as you suggest. I would be grateful for the law on social media please. Do you think she has a case for constructive dismissal - I believe that is difficult to win?
Expert:  Ben Jones replied 1 year ago.

Thank you. Whether or not an employer can take disciplinary action or even dismiss an employee as a result of their activity on social media is a tricky issue. A balance must be struck between an employee's right to private life and the employer's right to not only protect its business and reputation but also its employees.

Employers should only take formal action against an employee's use of social networking websites where there are valid concerns about this having a detrimental effect on the business, including any adverse effect on other employees. Common examples can include:

· Comments that can amount to bullying or harassment of other employees

· Complaints about the employer that can bring the business into disrepute or affect its reputation

· Serious breach of commercial confidentiality.

It is also important to consider the potential readership of these comments, for example how public they were made. If the settings were private and only a limited number of people not related to the business could read them, then the seriousness of the offence may not be great. Similarly, if there was no way of identifying the employer from the comments or from your personal information, it would be difficult for the employer to argue there was damage done to its reputation.

Some useful pointers in deciding the fairness of disciplinary action taken by an employer include:

· The nature of the comments and how offensive they are

· Whether the comments are made on a purely personal social media account

· Whether privacy restrictions are in use so that only friends can see it

· Whether there is anything on the employee’s profile or in any of the comments to link them to the employer

· Whether the comments say anything derogatory about the employer or its customers and employees

· Whether the comments are posted in an employee’s own time or in work time

· Whether the employee uses his own equipment or the employer’s

· Whether the disciplinary rules make it clear what sort of misuse of social media gives grounds for disciplinary action.

In terms of constructive dismissal this can indeed be a difficult matter. I think the issue here is that there were grounds for disciplinary action and there is no guarantee this would have ended up in dismissal so her resignation may have been slightly premature.