The staff Christmas party went well and everyone went home in good spirits. The HR team breathe a sigh of relief as no employee seemed to cross the line on the night and no complaints of bad behaviour were received. Then, a manager gets in touch – they’ve seen one of their team members at the Christmas party tagged in a photo on Facebook by another employee and they are not happy with what they see. The manager wants the employee disciplined. What to do now?
The first step is to carry out an investigation to determine whether there is any disciplinary case to answer. This will involve querying how the manager came to see the photo – is it on a public profile or is the manager a Facebook friend? Whether the photo can be seen by the public or only to friends of the employee may be relevant. The photo itself should be seen so it could be understood whether the activity being shown is particularly serious. The employee, manager and the other employee who carried out the tagging will need to be interviewed as part of the investigation. It will also be necessary to understand whether the photo was taken during the staff Christmas party or elsewhere during the employee’s own time. The employee could possibly allege that the photo is doctored. If such an allegation does raise doubts, then this could mean that IT analysis should be involved to assist in establishing whether the photo is authentic.
There is a delicate balance in such cases as to whether an employee’s private life can lead to disciplinary action even where they are making such information ‘public’ via social media. An employer will need to weigh up whether it is acceptable to take into account conduct in somebody’s private life and whether they feel they must because of reputation concerns for the business. Where there are reputation concerns, an employer must be able to provide evidence of this as was made clear in the case of Whitham v Club 24 trading as Ventura (2012). Please see our article on this case here.
Once a full investigation has been undertaken, a decision will need to be made as to whether there is a disciplinary case to answer. If there is, a disciplinary procedure must be followed which satisfies the ACAS Code of Practice on Discipline and Grievances. It is advisable to obtain legal advice on this process and also to apply the established principles of proportionality and reasonableness both to the investigation and in regard to any disciplinary sanction applied.
An individual cannot stop a friend from tagging them on Facebook, but can control what appears on their own Facebook timelines. Facebook has a feature which allows individuals to review and approve or reject a tag before it appears on their timeline. This is a prudent feature to use not only for those who drink too much at the office Christmas party, but also to stop those unflattering photos an individual would rather not have everyone see on their timeline!
Are you dealing with an employee issue involving social media? We can help, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).