Can Evidence on Facebook be used in a Disciplinary?
The short answer is it depends. You will need to ensure that your business has an up to date Social Media Policy which prohibits employees from making derogatory or offensive comments about the business, its employees, clients etc... The policy will also need to make it clear that any sort of inappropriate behaviour in this context applies outside of work.
Even if the business is not explicitly named in any posts, if the company is clearly identifiable you can still take action. You would need to gather evidence, this may need screen shots from Facebook, or if you cant get access and the conduct has been reported by someone else, asking them to screen shot it and provide you with the evidence.
It is advisable to gather the evidence before calling the employee to an investigatory meeting as they are likely to delete any evidence on their page if they are tipped off. At the investigatory meeting they should be informed why you wish to speak to them and asked to show you their Facebook page. They do not have to comply, but if they refuse this could be taken into consideration regarding their level of co-operation.
Anyone who has been named in any posts should not be involved in the investigation to avoid allegations of bias. After the investigation if the post remains online you should inform the employee is to be removed (ensure you retain the hardcopy evidence).
Depending on what the post said and the language used a decision will need to be made regarding the level misconduct. You can also consider whether they have any previous warnings or whether they have engaged in similar conduct before.
Any arguments regarding privacy can be explained, regardless of privacy settings, Facebook is a public platform and the information can be used.
What if you do not have a social media policy? Depending on the comments made, you may arguably be able to discipline an employee in respect of breach of trust and confidence, or bullying. However the waters are muddied slightly and an employee may have arguments that they were not aware of social media rules which could make the sanction more difficult to apply.
(Blogs on this website do not constitute legal advice and you should seek the advice of one of our specialists if you require employment assistance.)
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