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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 70904
Experience:  Qualified Solicitor
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I have just been notified that an anonymously call to our HR

Customer Question

Hi, I have just been notified that an anonymously call to our HR dept has led to a disciplinary hearing next week for gross misconduct, I and 4 other work colleagues in a team WhatsApp group have posted illicit content, whilst I agree its illicit and in appropriate using a company mobile, is the content in the WhatsApp private as the WhatsApp application was downloaded privately and is not a recommended IT application, I totally agree that as a 54 yr old man I should have know better, but the said group had not posted any comments since May 2019, so we can understand where this anonymous call has originated from, any advice would be very much welcome
JA: Was the disciplinary action discussed with a manager or HR? Or with a lawyer?
Customer: A case manager
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: Employees,and yes they have all the relevant policies and code of practices in place
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no, I think you have what I know at the moment
Submitted: 14 days ago.
Category: Law
Expert:  Ben Jones replied 14 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 14 days ago.

How long have you worked there for? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 14 days ago.
20 years
Expert:  Ben Jones replied 14 days ago.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. First of all, I am sorry to hear about the issues you have experienced in your situation.

I should initially make it clear that it makes no difference if you downloaded the application privately and it is not part of the approved apps for work – these factors will not make any difference.

The wide use of social messaging and social media has seen an increased number of incidents involving the workplace. Employees end up posting statuses or comments, or uploading photos and videos which gets them in trouble with their employer. Whether an employer can take disciplinary action or even dismiss an employee as a result of such 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 the rest of the workforce.

Employers should, therefore, only take formal disciplinary action against an employee's use of social media where there are valid concerns about this having a detrimental effect on the business, its clients or other employees. Common examples of such situations can include:

- Comments that are of an offensive nature, or which can amount to bullying and harassment of other employees

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

- Serious breaches of commercial confidentiality, like revealing confidential information about the business and its clients or employees

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

Previous cases dealing with such matters have given us an insight into what an Employment Tribunal may consider when they determine the fairness of formal disciplinary action taken by the employer. The following factors are common ones taken into account:

- The nature of the comments and how offensive they are

- Whether the comments are made on a purely personal account

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

- 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.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Customer: replied 13 days ago.
Many thanks Ben, I really appreciate the above reply
Expert:  Ben Jones replied 13 days ago.

You are most welcome. If you have any further questions about this then please do not hesitate to get back to me and I will be glad to help. All the best