With social media embedded in the lives of many individuals, employers are increasingly having to consider whether it is appropriate to dismiss an employee because of an offensive posting they have made. Set out below are some points for employers to consider in these circumstances: 

  • Consider what was actually said - saying “I think I work in a nursery and I do not mean working with plants” is very different to saying “[manager] is apparently a c**t” (both of which are real examples featuring in cases dealt with by the Employment Tribunal).

  • Evaluate the reach and impact of the posting – the more posts that are made and the more people that see them, the more likely it is to have a damaging impact. Just because a person posts their comments on, say, their private Facebook page, does not necessarily mean that they should expect it to stay private; one of their “friends” could forward it on.

  • Look at internal guidance and policies – many employers have a dedicated social media policy in place which sets out guidelines on what is and is not permitted use. If you do not already have such a policy, now is the time to put one in place.

  • Think through the mitigating circumstances – where the employee has swiftly removed the posting or apologised, you may perhaps want to be more lenient, particularly if they have a clean employment record.

  • Conduct a thorough investigation - the employee should be given an opportunity to explain themselves. There have been situations where, for example, an employee’s account has been hacked and they did not actually make the offensive posting.

  • Follow the ACAS Code of Practice on Disciplinary Processes – this sets out how to run a fair disciplinary procedure, such as writing to the employee in advance to set out the allegations and allowing them to be accompanied at a disciplinary hearing.

Essentially, to avoid employment law claims (such as unfair dismissal), an employer must act reasonably and reflect on whether the posting and any damage caused by it is so bad that it justifies the employee losing their job.