A: Discovering that an employee has made disparaging remarks about your organisation on social media can be a bitter pill to swallow, especially if this individual has multiple years’ service behind them.
Often staff believe they cannot be disciplined for remarks made outside of work, yet you may still be able to dismiss an employee in this situation, providing you follow the correct procedure to avoid any unfair dismissal claims.
Your workplace policies will be a key factor in determining whether you can dismiss an employee in this situation.
During the investigation you should also give consideration to the context of the remarks and the level of risk this poses to your business’ reputation.Well-constructed policies will provide clear guidelines that staff are expected to follow, while also giving you the framework to discipline those who fail to abide by these rules.
Most employers have a policy in place that governs staff conduct on social media, reserving the right to dismiss those who bring the company into disrepute, and having this in place will strengthen your ability to take disciplinary action.
Before deciding whether or not you want to dismiss the individual, you should assess the extent of their actions by conducting an investigation.
This will involve gathering any relevant evidence, which may be easy to find providing the employee has not removed the post from their social media account.
During the investigation you should also give consideration to the context of the remarks and the level of risk this poses to your business’ reputation.
If the employee’s remarks relate to an activity that is covered by the whistleblowing protections, you should avoid taking disciplinary action as this is likely to be considered unfair.
To avoid situations like this you should sit down with the employee and ask them to explain the reasons behind their actions. It may be that the employee feels aggrieved as a result of harassment or discrimination that they have experienced at work and while a level of disciplinary action may be appropriate, it would be unwise to dismiss them in this scenario.
Alternatively, if the remarks are unfounded and malicious you can proceed with disciplinary action.
Ultimately, if you decide that the employee’s remark is significant enough to break the trust and confidence of the employment relationship, a dismissal would be appropriate. Even if the remark on its own is not severe enough to dismiss for gross misconduct, you may still be able to dismiss the employee for continued misconduct if they are already under a final written warning.
Either way, you must ensure that any dismissal falls within the band of reasonable responses prior to taking action, making sure to follow the correct procedure, including giving the employee a chance to appeal the decision in order to avoid any unfair dismissal claims.
Peter Done is managing director of law firm Peninsula
