Q&A  

Clear policies reduce social media scandals

Clear policies reduce social media scandals

Q. Can an employee who makes a complaint about our business activities on Twitter be protected under whistleblowing law?

A. While workers may feel that negative comments posted about work on Twitter carry little weight in the workplace, employers may be able to take disciplinary action if these threaten the company’s reputation.

However, there may be occasions where individuals will be protected under whistleblowing law, which may cause employers to take a different approach.  

Firstly, when faced with news of an employee making a complaint online, employers must not rush into any ill-informed decisions.

Instead, a full investigation should take place, including holding a meeting with the relevant individual to gather information on their comments and understand if these relate to any underlying issues at work.

Only by carrying out this due diligence will employers be in a position to decide how to proceed effectively. 

If, for example, the employee’s complaints are judged to be malicious and pose a significant threat to the business’ reputation, disciplinary action maybe required.

Disciplinary action can range from a verbal warning to summary dismissal, depending on the content of the posts.

It will also help if the employer can refer to a well-constructed policy on social media activity that details how they will respond to inappropriate conduct. 

However, if the employee’s comments relate to a protected disclosure, then this will be ‘whistleblowing’.

For a complaint to qualify as a protected disclosure, it must relate to one of six prescribed ‘relevant failures’, including a criminal offence or a health and safety risk. 

Individuals will be protected from detrimental treatment in these situations and will be able to claim unfair dismissal if they are dismissed for this reason.

It does not necessarily matter if the employee’s complaint is correct, or that they made it online, as long as they have a reasonable belief that the organisation has acted unlawfully and that this information is genuinely in the public’s interest. 

Therefore, it would be wise to have a clear whistleblowing policy that outlines the preferred procedure for reporting a protected disclosure, and how employers plan to respond to any complaints.

After all, an effective policy and reporting procedure should remind employees that there are other ways to report unlawful activities at work. 

Although complaints made by employees online can be protected under whistleblowing law in the right circumstances, this does not necessarily give individuals the freedom to say whatever they like about their employer.

And while employers may be inclined to react negatively to protected disclosures that question their existing business practices, they too must abide by the laws on whistleblowing in the workplace.  

Peter Done is managing director of Peninsula