“It has recently come to my attention that one of my employees is accessing Facebook during work time and is making disparaging comments about her manager. Can I discipline her or even dismiss her? How can I prevent this happening with other employees? How do I handle it?”

Antoinette Vahey writes:

The use of social media and its impact in the workplace has become a hot topic in recent years. In a recent study carried out by Peninsula, 67% of employees admitted to checking their social networking sites during working hours. 73% of Irish employees have admitted to bad mouthing their employers on social networking sites.

This poses a huge dilemma for employers from the point of view of employee relations and workplace management. Aside from internal disciplinary issues arising for employers there are also other risks associated with the misuse of social media which should be considered, namely; disclosure of confidential information; defamation and/or bullying and harassment of employees or others via social networking sites.

However, the most pressing issue facing employers is the disciplinary issues arising from the use of social networking sites such as Facebook in the workplace.

The usual principles of natural justice and fair procedures apply and employers are advised to proceed with caution when dealing with disciplinary issues arising from employees use/misuse of social media.

This matter has come up for consideration in numerous jurisdictions throughout the world and Ireland is no exception. One of the first Employment Appeals Tribunal cases to examine the issue of social media in the workplace was the case of Kiernan v Awear (2008), where an employee posted derogatory comments about her manager on the Bebo website. The employee was deemed by management to be guilty of gross misconduct and she was subsequently dismissed on that basis. She referred her case to the EAT who held that the sanction imposed was disproportionate in the particular circumstances and accordingly found that she has been unfairly dismissed. The employee claimed that her posting was a private matter and that it had no bearing on her working relationship.

The EAT did not address the privacy issues or challenge the right to discipline an employee. However, it did find that the damage to Awear was minimal and, given that the employee had a good disciplinary record in advance of this particular action, the dismissal was disproportionate. The EAT stated, “Certainly the claimant’s comments deserved strong censure and possible disciplinary action but they did not constitute gross misconduct in the circumstances”.

The issue of an employee posting comments was again examined in the case of Walker v Bausch and Lomb (2008). Here the employee posted comments on the Bausch & Lomb intranet to the effect that “500 jobs to be gone at water plant before end of first quarter 2008”. This post had quite serious consequences in terms of publicity for the company and industrial relations in the workplace. Following a disciplinary process the employee was ultimately dismissed for gross misconduct.

The EAT found that the employer’s investigation was reasonable and fair. However, it said that the sanction of dismissal imposed was in all of the circumstances disproportionate. In making this finding, the EAT indicated that although considerable damage could have been caused, in reality that damage was limited and very few staff had actually read the message. In addition, union and local media intervention had ensured damage limitation. The EAT highlighted that there was no proof that the employee had ever received and reviewed the company’s Email and Internet Policy and the EAT felt that a lesser sanction, suspension and final warning perhaps, would have been more proportionate.

In its decision the EAT stated, “Employers should ensure staff are seen to be advised individually of activities, which potentially could lead to a dismissal for gross misconduct. In the normal course, employers would require formal acknowledgement by employees of having received and read a policy of this nature”.

More recently the issue was examined in the case of Bank of Ireland (ICS Building Society) (2011). This case involved the circulation of emails of an indecent, obscene and pornographic nature, which was the subject of a large investigation at the bank On foot of the investigation the bank took disciplinary action against ten employees and ultimately dismissed five employees, including the two claimants in this case. Neither of the claimants disputed the fact that the emails had been sent nor that they were inappropriate. However, the claimants’ position was that everybody was circulating these types of emails and that they had been unfairly selected and essentially made scapegoats in respect of email sending.

The EAT found that the bank’s investigation into the circulation of emails was flawed as it confined itself to examining a small sample size of emails and had excluded the two women in question from its enquiries. It also criticised the bank for not investigating staff who had deleted inappropriate emails. The EAT also noted that the abuse of the policy was widespread in the ICS Building Society (then owned by Bank of Ireland) and breaches were being committed by staff at both the same and more senior levels than the two claimants. It also noted that no reputational damage was done to the bank as a result of the breaches as well as the fact that the claimants had never been disciplined for misconduct in the past. Ultimately the EAT concluded that the dismissal of the women was unfair as the sanction was “not a proportionate response” to the breach of the bank’s email policy.


Practical steps in dealing with social networking issues

1. Review policies and procedures.

It is fair to say that as social media has advanced at a drastic rate in recent years, many employers will have an email or internet policy in place, which has not catered for more recent social networking sites such as Facebook and Twitter. The internet and communications policy should deal with what is acceptable both in and outside of the workplace with regard to social media. It is worth being specific in what is allowed but also to be general enough to cover new technology and developments which come into place after the policy is implemented. The limits on what an employee can do outside of the workplace will necessarily need to focus on potential damage to the business’ reputation or that of its customers. It should also stipulate what actions are or may be considered gross misconduct and may often need to deal with social media for business purposes.

It is also important to cross reference the internet and communications policy with other policies throughout the organisation including the disciplinary or bullying and harassment policy.


2. Training employees

Once a comprehensive internet and communications policy is put in place, employees should be trained in its implementation and be required to sign an acknowledgement slip with regard to the policy. Where social networking is permitted or even encouraged in the workplace, the employer should set out the ground rules and parameters with regard to its use. In particular, employees should be educated about what they are using and the consequences of misusing the facilities available to them.


3. Reasonable and fair response

It is apparent from EAT case law that where employers consider disciplinary steps, including dismissal, in the context of the use or misuse of social media, the normal rules apply. There is an onus on the employer to act proportionately and reasonably with regard to any disciplinary process. In terms of apportioning a sanction, it is clear that careful consideration must be given to the sanction being imposed. In particular an assessment should be carried out as to how much damage was in fact done, if at all. How deliberate was the conduct? How senior was the employee and whether there was any public influence?


4. Reinforce message re proprietary information

Employers will be aware that there is no absolute right to privacy in the workplace and should reinforce this message with employees. The employer should make it blatantly clear that internet facilities and communications systems in general are the property of the employer and an employer is entitled to monitor employee email and internet activity.

A watertight policy together with adequate training will be the best mechanism of controlling the use of social networking activity amongst employees. However, this will not always prevent misuse of communication systems. In circumstances where misuse arises leading to disciplinary action, employers need to ensure that their reaction to any disciplinary process is both reasonable and fair.