Ask the expert: Can we discipline an employee for Facebook comments?

Last week, an employee of ours posted a disparaging comment about our business as their Facebook status. The post named our company and we then discovered that other employees had 'liked' the status and/or contributed to the thread of comments. This was brought to my attention by another employee who is a Facebook friend of the employee in question. Is this sufficient grounds to initiate disciplinary action and/or could it reasonably amount to gross misconduct against both the employee who poste

We also had another instance recently, where an employee made a derogatory comment
about another employee on Facebook; what disciplinary action is appropriate in such
circumstances?

You are quite right to be concerned about how your employees use social media and such issues are becoming increasingly common in an employment context. Facebook has just celebrated its tenth birthday and its prevalence cannot be ignored; it is inevitable that a high proportion of your employees will have a Facebook account and, even if access is prohibited in the workplace, they are likely to have access via smartphones and other devices. Due to ease of access, employees can instantaneously post comments from their workplace and it is difficult for employers to put safeguards in place to vet this.

Unfortunately, there is no hard and fast rule as to what Facebook posts concerning an employer would constitute grounds for disciplinary action and, as with all conduct issues, principally, it will depend on the specific content and circumstances surrounding the employee's post. An employer can use Facebook posts as evidence in disciplinary proceedings and, in certain circumstances, will be justified in treating these as an act of misconduct or gross misconduct.

It is important that any disciplinary action taken must be in accordance with established policies and these procedures and should be applied consistently and proportionately. The starting point is to ensure that the company has in place a social media policy, which makes it clear what is expected of employees when using social media. This should make it clear that employees could face disciplinary proceedings for social media content that impacts on their reputation and the reputation of the company, as well as any comments about others which are derogatory or discriminatory or which amount to bullying or harassment, whether such comments are posted during working time or in their own time.

In an unfair dismissal claim brought against Apple Retail (UK) Ltd, the tribunal found that Apple had made clear in its policies and training materials that protecting its image was a "core value" and that it had been drawn to employees' attention that making derogatory comments on social media was likely to constitute gross misconduct.

As always with conduct issues, your response must be fair and one which a reasonable employer could have made. Where a disparaging comment has been made which impacts on the reputation of your business, although it is tempting to look at the potential impact of the post, you must instead focus on its actual impact when determining what disciplinary action is appropriate.

The appropriate disciplinary sanction to impose will depend on a number of factors, such as:

• The nature of the comments — if the views in the post are mildly expressed and/or it is difficult to identify the damage caused to the employer's reputation, it will be difficult to justify that a dismissal is fair.
• Is there a clear connection to the employee's work? Whether the employee in question has made the post during working hours or via the employer's computer system is of limited significance; the key issue is whether the content of the post relates to the employee's work or employer.

For example, a recent case in the High Court involved an employee who was dismissed for gross misconduct as a result of making negative comments about gay marriage on Facebook. It was held that his dismissal was unfair on the basis that he was not using Facebook for work-related purposes and his conduct was not capable of bringing his employer into disrepute.

• Did the employee subsequently regret the post and promptly remove it? Such an action is likely to be a mitigating factor and there have been a number of Tribunal cases in which dismissal in these circumstances was found to be unfair.
• How many Facebook friends does the employee have? Tens? Hundreds? And do they include colleagues or clients? What are their privacy settings? All of these factors may indicate the intended recipients and the actual reach of the post and subsequent severity of its impact. Employees might try and rely on the fact that their Facebook account is private and therefore none of their employer's business, however, these arguments hold little weight in a Tribunal.

Privacy settings do not guarantee the employee's privacy, or limit the scope of the comment's reach, due to the ease of sharing and tagging posts and the fact that posts can re-appear on other news feeds, once different users have contributed to the thread.

• The role and seniority of the employee in question — should they have been setting an example? Are they the figure-head for other employees? As you might expect, recent tribunal cases indicate that more severe sanctions are likely to be justified for more senior employees and particularly for those in managerial or supervisory roles. This is the case even where the senior employee has not initiated the thread of comments; pressing the "like" button in response to a disparaging comment made by a member of their team may well be sufficient grounds for disciplinary action and/or dismissal, and it may well be reasonable for an employer to consider this action as an endorsement of the comment posted.

Always bear in mind that in circumstances where the employee's conduct is deemed tantamount to gross misconduct, you must show on the balance of probabilities that:

1. you had a genuine belief in the misconduct;
2. you had reasonable grounds for that belief;
3. you conducted a reasonable investigation; and
4. the decision to dismiss was a reasonable response in the circumstances.

Where an employee has posted derogatory comments about other employees, this may raise further issues in respect of bullying and harassment. It is important to remember that an employer is vicariously liable for the acts of one employee to another in the course of their employment and therefore appropriate disciplinary action must be taken where this occurs. You should also bear in mind that work issues vented online can creep into the workplace and cause problems internally, which can then lead to further issues such as decreased productivity and morale.

As set out above, whether the post constitutes grounds for disciplinary action will depend on the circumstances of the post and its nature and extent. The seniority of the employee in question is likely to be a key factor as well, given that any conduct that indicates bullying or harassment on the part of a manager or supervisor through social media posts may point to a wider problem in the workplace.

All of the above serves to highlight how essential it is for all employers to have a clear social media policy in place. A social media policy should include guidance on the personal use of social media sites outside of work, what behaviour is acceptable and clear warnings regarding the consequences of breaching the policy. In addition, any bullying and harassment policies should be updated to cover instances of online bullying. We would also recommend that specific training is provided to employees and particularly to managers and supervisors on the use of social media, so that you can show they were aware of the policy and the ramifications of misuse. All of these measures will help to ensure that employees keep any work-related issues off their news feeds and offline.