How to investigate misconduct when an employee goes rogue on social media

Written by Mark Rowland Wednesday 15 September 2021
You’ll need a social media policy, thorough investigation and reasonable response. And establishing “gross misconduct” isn’t as easy as you’d think
A gavel on a background of social media logos

This article follows on from part 1: How to respond when an employee goes rogue on social media. Read on for part 2.

Social media misconduct is tied into several other areas of your employee handbook, such as IT and communications; bullying and harassment; confidentiality and disciplinary policies. It’s a complicated issue, and more difficult to judge than it might first seem.

Take, for example, the case of Trasler v B&Q. In this case, an employee posted on Facebook that their place of work was “beyond a ****ing joke,” and they would soon be “doing some busting”. A tribunal held that their dismissal was unfair, that it was unreasonable for the employer to conclude that the post was a threat to the business, and that the relationship had not broken down so much that dismissal was necessary.

The bottom line? You need social media guidelines

The key to tackling this, as outlined in our previous article about bad social media behaviour, is to have clear rules in place, touching on all of those areas of the employee handbook, as well as being covered in a clear social media policy.

“The social media policy itself would expand upon what’s acceptable and what isn’t,” says Russell Brown, head of employment for law firm Glaisyers ETL. “For example, anything that damages our business reputation, expressing views about certain activities that you’re engaged in on our behalf in the course of work. Don’t express views on other employees that might not be considered acceptable.”

Social media policies often have a provision in place that makes employees aware that their employer monitors social media use from time to time. In addition, it should explain what sanctions could apply if employees’ behaviour on social media results in disciplinary proceedings.

“The importance of that policy is to make employees aware of an employer’s expectations and what they can do and what they can’t do,” says Russell. “That puts the employer on a much stronger footing when there is a breach.”

This must of course strike the right balance that allows people to enjoy their rights to freedom of expression. People must be allowed to express their own views on social media, but you also have a duty of care towards your employees to make sure that they work in an environment that feels safe and free from bullying or harassing behaviour: “If you get notice that there is something going on that amounts to the bullying of your staff, then you’re under an obligation to investigate it,” says Russell.

Investigate, investigate, investigate

Whenever you do get a case of potential social media misconduct, it’s important not to apply a knee-jerk reaction. Your investigation should be thorough, gathering evidence and giving the employee the chance to respond.

Gather any screenshots and evidence you require and sit down with the offending employee and listen to what they have to say. Then you can make a decision on whether to initiate disciplinary proceedings. You would speak to the employee again after they’ve been made aware of the possible outcomes, and reach a decision after that.

Assess the impact

In the case of any alleged social media misconduct, internally assessing impact is quite hard. Even with something fairly clear, such as something that gets negative press attention, it can be hard to quantify just what damage has been done to the business. “So many things can have an impact rather than just one factor like negative media coverage,” explains Helen Jamieson, founder and MD at Jaluch HR.

Russell adds, “You’ve got to ask yourself whether there are reasonable grounds to believe that they have done what you allege they’ve done. Part of that, in a social media context, is to ask yourself: what is the effect of their actions?”

Decide on the logical, reasonable response

Once you’ve determined those impacts, the next stage is to determine what a reasonable response would look like, based on how it has affected the business, customers and clients, or employees. “That’s when you decide what sanction to impose: a formal warning, a final written warning, or dismissal,” he says.

One of the biggest pitfalls is assuming that because a manager believes something is a dismissible offence, it is actually dismissible. As Trasler v B&Q demonstrates, this can be a grave mistake.

“In part, dismissals are often made on the basis of emotion, not sound logic, especially when the media has been hounding a company for answers,” says Helen. “But tribunals don’t follow emotions; they follow logic. So check the decision before you find yourself in court.”

The hardest question: is it gross misconduct?

Helen says it comes down to the statement found in most gross misconduct clauses in disciplinary policies: “bringing the name of the company into disrepute”.

Some companies insist on there being no social media connection between an individual’s personal account and their employer, but this is difficult to enforce. What action do you take, for example, when an employee tags themselves and colleagues in photos that are identifiable to their workplace?

This shouldn’t be a problem, says Helen, unless they post comments that are not socially acceptable. That’s quite difficult to define. “Where there is a grey area, is where what we post can be ‘accessed’ forever. However, for most employees it is clear and they are aware when they are stepping over the boundary of what is acceptable.”

Ultimately, it doesn’t matter what anyone posts until such time as those posts “bring the name of the company into disrepute”, says Helen. Educate staff about what is and is not acceptable.

Gross misconduct is sometimes called instant dismissal, but this is very dangerous thinking for any manager or director, continues Helen. It shouldn’t be instant in the literal sense of the word, and should take at least two weeks or longer to allow for suspension, investigation and disciplinary hearing, plus the outcome letter. “Don’t be tempted to think you can just say ‘you’re sacked!’. That will be found to be an unfair dismissal.”

Follow these rules, and you should avoid a “Trasler v B&Q” situation. Remember it’s not always as clear cut as it might first seem.

Image: Shutterstock/Mehaniq

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