You are approached by an employee who has seen some posts on a colleague’s private Facebook page which are clearly derogatory towards your business.  You decide to commence disciplinary proceedings but can you use this evidence?

Firstly, we recommend that all organisations have a Use of Social Media Policy and our blog “Where’s the line with social media use by employees?” explains why – click here to read more.

Key policy points

Any good use of social media policy should prohibit your employees from making derogatory, offensive or defamatory comments about your business, its employees, clients and so forth on any social networking sites, regardless of whether that happens during work or non-work time.

Unfortunately, despite this type of rule and having a policy in place, some employees will still engage in this behaviour.

Social Media posts

Business owners or managers are normally made aware of an issue by another employee bringing it to their attention. A post does not need to specifically name your business, or employee, or client to be used as part of a formal disciplinary process. If there is enough information on the social media platform for you, or them, to be clearly identified that will suffice. For example, a profile may be set up stating where they work, or there may be photos of them in a branded polo shirt and the post may refer to “in the office today and…”.

Steps to take

1. Your first step is to acquire copies of everything that you will need to take the matter to a disciplinary hearing. You may need to ask the employee who has approached you if privacy settings do not let you access the platform. It is wise to ask for screenshots of the derogatory posts. Alternatively, another manager might be the employee’s Facebook friend and have access to their page. If that’s the case, it may be more appropriate for them to gather the evidence.

2. The next step is to call the employee to an investigatory meeting. You are not obligated to tell them why in advance as they may remove or hide evidence. During the investigatory meeting ask them to voluntarily show you their Facebook page, although they don’t have to comply. Remember to avoid allegations of bias, anybody who is named in the posts should not be involved in the investigatory or disciplinary process, with the exception of giving evidence.

3. After the investigatory meeting, follow it up by requesting that your employee removes all of the offending Facebook posts immediately. We have a letter that requests the removal of a social media posting on our HR Toolkit.  Once that’s been done, your online evidence will (hopefully) disappear for good – that’s why hard copies of screenshots are essential.

Resistance

If your employee tries to argue that their Facebook account is private and you can’t use the evidence that’s been gathered from it to launch disciplinary proceedings, don’t worry. All social media posts are considered to be information that’s in the public domain – any privacy settings or restrictions placed on social media accounts are generally irrelevant.

It’s vital that your social media policy is robust making it clear that any breach of its provisions will result in a disciplinary offence so, provided the comments are indeed derogatory, and your employee has no rational reason for them, you’ll have enough to commence disciplinary action.

If you do not have a Social Media Policy use the template on our Online HR Toolkit and issue a copy to all staff.