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When a member of staff posts negative comments on social media

How would you respond if a member of staff posted a negative comment about your business on social media?

With billions of people worldwide using social media, organisations are increasingly finding that employees are turning to social media sites to post grievances about their employer and workplace.

How should you respond when this happens?
• Firstly, be quick to react. On becoming aware of a negative comment, collect the evidence quickly and identify the author.

• Once the evidence has been gathered, take steps to have the comment removed from the social media site.

• A derogatory comment posted on a social networking site will be defamatory if it contains an untruth and serves to undermine or damage the reputation of the company. Claims for damages may be appropriate in some cases, but it is more likely to result in disciplinary action against the individual who posted the comment.

• Treat the misuse of social media as you would any other type of alleged misconduct, ensuring the disciplinary procedure is followed. Inform the individual, carry out an investigation to gather all the facts and invite the employee to attend a disciplinary hearing.

• A word of caution if dismissal is considered. The impact on the organisation must be sufficiently damaging to warrant a dismissal.

Are posts private?
One defence employees use is ‘It was a private post’.

Tribunals are prepared to uphold the decision to dismiss an employee regardless of the fact that there may have been privacy settings in place. One tribunal commented “When a Claimant put comments on his Facebook page, to which members of the public could have access, he abandons any right to consider his comments private”. Furthermore, in the case of Teggart v Teletech UK Ltd, the claimant was not entitled to rely on the right to privacy under Article 8 of the European Convention of Human Rights.

What evidence can be used?

Comments posted by an employee on their own social media site/page can be used as evidence in disciplinary proceedings as long as the evidence has been obtained by lawful means. Hacking into the employees account is unlawful. Obtaining it through the employers own account or passed on by another employee is lawful.

Have a Social Media Policy.
Finally, it is imperative employers have a robust Social Media Policy in place. This can avoid the risks of disclosure of confidential information and claims of cyberbullying, harassment and discrimination. It adds an additional layer of protection to the organisation.

The Policy should include a prohibition on the posting of negative comments about the company, its employees, business contacts or competitors.

Communicate the Policy clearly to all employees and spell out the consequences for breach of the Policy.

What can you do if a former employee posts a derogatory comment on a social media?
If you find that an ex-member of staff has posted a potentially defamatory or otherwise unlawful statement, firstly you should write to the host site requesting the immediate removal of the material.

In addition, if the ex-member of staff’s contract of employment or a post-termination agreement prohibited the disclosure of confidential information, you should write to them demanding removal of the content and notifying them this is a breach of contract and setting out the intended action if they do not remove it.

A post-termination agreement may be in the form of a confidentiality agreement, a post-termination restrictive covenant, a settlement agreement or a clause within the contract on confidential information.