HR at The Office asks:
Nick, one of our senior managers, discovered last week that a member of his team, Gary, had posted a series of nasty comments about him and The Office on his Facebook profile. I tried to access Gary’s profile to view the comments myself but can’t because Gary’s profile is private and only visible to his friends. Nick and Gary always got on very well but Nick has now told The Boss that he isn’t prepared to continue managing Gary and wants him sacked! The Boss is also annoyed that Gary has made disparaging comments about The Office which could be very damaging to the business. We’ve never had any trouble from Gary previously – he’s been at The Office for more than 3 years – so this has come as a bit of a shock to us. I caught up with Nick yesterday and he told me that Gary had now removed the comments and posted an apology to him but Nick is still very angry and wants us to take action. The Boss agrees with Nick but I’m not sure what to do.
I’d better ask Harbottle & Lewis.
Employment Team says:
Unfortunately, The Office is not alone in having to deal with staff posting inappropriate comments on social networking sites. A recent survey suggested that over one third of workers had spoken negatively about their workplace on a social networking site. Perhaps more surprisingly, many of them did not think they should be subject to disciplinary action by their employer for doing so!
On the face of it, if Gary has posted nasty comments about Nick on his Facebook profile, as well as making disparaging comments about The Office, then that is potentially a misconduct issue (as would any derogatory comments about clients or customers, although that does not seem to be an issue here). At present it is not clear exactly what the comments are and The Office will need to carry out an investigation into what has happened. Remember that no decision should be made, or action taken, until The Office has carried out a reasonable investigation. The Office must be satisfied that it has reasonable grounds for believing that Gary is guilty of the alleged misconduct. So that an unhindered investigation can be carried out, it may be necessary to suspend Gary, assuming Gary’s contract allows for this. But suspension should not be an automatic knee-jerk reaction and if it is used then it should be for no longer than is reasonable (e.g. 2 weeks) and kept under review and of course it should be made clear to Gary that suspension itself is not a form of punishment.
As well as establishing the facts, The Office should also consider what its own policies and procedures say, in particular any (i) social media policy, (ii) bullying and harassment policy, and/or (iii) disciplinary policy/procedure. Policies are useful because they can set out how conduct like this should be dealt with and the sanctions that may be appropriate for this type of behaviour – for example, a disciplinary policy/procedure might state that a derogatory comment made on a social networking site about The Office, its staff, and/or clients or customers would amount to gross misconduct (rather than just misconduct). If The Office doesn’t have any relevant policies then we would recommend at the very least implementing a disciplinary policy/procedure and a social media policy. Whilst the absence of such policies won’t prevent The Office taking action, clear policies can assist The Office if a similar incident was to occur in the future.
If formal disciplinary action is considered necessary following the investigation – and it seems that it may be – then The Office should hold a disciplinary hearing with Gary. Gary has the right to be accompanied at the disciplinary hearing by either a colleague or trade union representative. Adequate notice of the hearing should be given to him and he should also be provided with copies of any relevant documents in advance. It is essential that Gary is given sufficient time to prepare for the hearing and is able to make representations in his own defence.
If Gary’s comments are sufficiently serious (and amount to gross misconduct rather than misconduct under The Office’s disciplinary policy/procedure) then dismissal may well be within the range of reasonable responses open to The Office to take. But The Office should also consider whether in the circumstances a lesser sanction might be appropriate e.g. a final written warning. The Office should also ensure that it takes into account any relevant mitigating factors, including Gary’s contrition, his voluntary removal of the comment and his clean disciplinary record – failing to consider these could potentially render a dismissal unfair. If The Office does dismiss Gary then ensure that he is given a right to appeal the decision and that the appeal is dealt with promptly and by someone independent and ideally more senior than the original decision maker.
Finally, it’s worth remembering that just because Gary’s Facebook page was visible only to his Facebook friends, this does not prevent The Office taking disciplinary action following a reasonable investigation. After all, Gary has no control as to how his comments might be forwarded on to third parties. It’s also worth noting that Gary does not have the right to freely express derogatory comments/opinions about The Office, his colleagues and/or clients or customers – the right of freedom of expression is a qualified right and The Office is entitled to restrict what staff can post on social networking sites in order to protect its legitimate business interests as well as other staff from bullying and harassment.
What else can Harbottle & Lewis do to help?
We can assist with drafting appropriate social media policies, bullying and harassment policies and disciplinary policies/procedures for your workplace so that your business, your staff and your clients and customers are properly protected against a Facebook attack. For more information please contact a member of the Employment Group.
23 Aug 2012