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.
If the comments concerned another member of staff and that person saw them or another employee took offence, disciplinary action can be justified although the punishment would need to be determined in line with established employment law principles. These would include examining the nature of the comments and how serious they were (e.g. racist, sexist or other seriously offensive comments could justify dismissal), the employee’s disciplinary record and length of service (the longer one has worked there and if their disciplinary record is clean, the more an employer should think about issuing a warning rather than dismissing).
In summary, it is entirely possible for disciplinary action to be taken in the circumstances but the outcome needs to be carefully considered taking into account the nature of the comments, the context in which they were made and how they have affected the business and/or other employees.