Whilst most eyes will be on the General Election today, some may also be on the twitter spat which has broken out between One Direction band member, Louis Tomlinson, and his former band mate, Zayn Malik. A very public war of online words has commenced on twitter between the two ex-band mates. Opinion is very clearly divided as to which musician is in the wrong.
Social media feuds between employees
As an employment lawyer, I am being asked more and more frequently to give advice to employers as to when (and how) to intervene when such social media issues occur between employees. Employment lawyers are now having to grapple with issues such as “cyber bullying” and “online social exclusion” on a sometimes weekly basis.
Is the conduct within the course of employment?
Before making a decision about whether to intervene in such online spats between employees, an employer should consider whether or not the conduct falls “within the course of employment”. Historically employment tribunals have interpreted this definition very widely and frequently in favour of the employee. However tribunals are also keen to emphasise that each case will be fact specific. Generally an employer will only be liable for acts of its employees which are authorised by it. Therefore if an employer makes clear to employees what use of social media is prohibited, this would be a potentially good defence to any claim on the basis that such conduct took place between employees outwith the course of employment. On this basis, employers should have a clear social media policy in place and provide regular training to its employees as to unacceptable use of such social media.
What steps should be taken by the employer if social media misconduct falls within the course of employment?
Where possible, employers should encourage employees to make use of the formal grievance procedure. This will allow the employer to create and maintain a paper trail as to the extent of the alleged misconduct. This should also allow the employer to note the effect of the misconduct on the disgruntled employee. This information might also prove useful at any future tribunal hearing.
Employers should ensure that any bullying and disciplinary policies extend to include the use of social media. This might include the use of offensive or intimidating language directed at another employee on social media.
Lastly employers should also take action against employees who commit acts of misconduct on social media. In order to do so, the employer will require to rely upon a robust social media policy.
Ultimately whether you are #TeamLouis or #TeamZayn, it seems clear that this recent episode of #KeyboardCourage looks set to prolong the #ZaynPain for another few weeks …
Have you ever encountered an employee try to delay their disciplinary process, and probable dismissal, by raising grievances against fellow employees and managers? Have you then spent hours investigating each of these accusations before being able to complete the original disciplinary process? A number of employers will take comfort from the case of Jinadu v Dockland Buses decided this week. The case rejected the notion proposed by the employee that her dismissal was unfair because the employer had completed her disciplinary proceedings without first investigating the grievances she had raised.
The case involved a bus driver being summoned to a disciplinary hearing after reports of poor driving. During the proceedings the employee made a number of allegations against some of the managers involved. Despite these allegations the employer continued with the disciplinary proceedings and ultimately dismissed the employee. The employee claimed in the Employment Appeal Tribunal (EAT) that her grievances should have been resolved before she was dismissed. The EAT ultimately decided that this was not the case and that the dismissal was fair.
The Employment Judge did not go into great depth as to why he rejected this argument made by the employee. This means that it is still uncertain as to when an employer can proceed with a dismissal without dealing with any grievances raised and when this would be inappropriate. Like many legal matters it will still depend on the facts of the case and the specific circumstances surrounding the dismissal. However this case does make it clear that if a grievance is ignored then the dismissal is not automatically unfair. This in itself should provide some encouragement to employers.
The Employment Judge also rejected the employee’s argument that the process was unfair because some of the people she had raised grievances against were involved in the disciplinary process. This is interesting, although it should be noted that no grievances were raised against the person chairing the disciplinary hearing and the ultimate decision maker.
Our advice would be to take each case as it comes. If you believe the accusations could have an effect on whether or not the employee retains their job, then this should be a part of your investigation. If however the grievances are unrelated to the employee’s situation and simply a way of trying to delay the inevitable, then you should proceed with the disciplinary process as planned. We would always recommend conducting exit interviews with staff leaving your employment. This will give an employee the chance to raise comments about fellow staff. It is during these interviews, when there are no repercussions to the employee, that employers often learn most about their staff.
In terms of the disciplinary process itself, clearly a disgruntled employee will often make accusations about managers who have criticised them. This should not absolve their input in the process. However we would strongly recommend, if at all possible, having an impartial person to chair any disciplinary hearing. This should be someone who has had no involvement with the investigation nor the employee previously.