FOCUS: Social media and bringing the employer into disrepute

Paul Kelly, Head of Employment II

Blacks Solicitors’ Head of Employment Paul Kelly (pictured), considers what care home operators need to know when it comes to employee social media, and what to do if they are brought into disrepute.

Social media can be a fantastic tool, however, it can also be challenging for care home operators and employers to ensure employees are using their social media in a way which isn’t detrimental to care home residents, other employees, or the employer.

For care home operators there are a number of issues and potential problems that can arise when staff are regularly using social media at work and in their homes. Not only can staff be easily distracted and potentially focusing more on their notifications than providing effective care to residents, but the danger of defamation can be significant.

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Making adverse comments on social media about the care home can be hugely damaging to reputation, and may also infringe on the privacy of residents. The potential for misuse of social media by staff is an issue, however, if an employer understands how to deal with this effectively it’s less likely that a problem will arise in the future.

What are the rights of care home operators and employers?

In respect of disciplinary sanctions, what can an employer do in these circumstances? Care home operators and employers should have a social media policy that sets out what is and is not acceptable behaviour on social media at work. Employees who are in breach of the policy can be subject to disciplinary action.

In circumstances where the offending social media conduct is outside of work time and unrelated to work, it is often still possible to justify disciplinary action. Needless to say, in either case the employer still needs to conduct a thorough investigation and disciplinary process before issuing any disciplinary sanction.

Bringing the employer into disrepute

An important concept is that of ‘bringing the employer into disrepute’. Simply making comments on social media may not be enough to justify the employer’s intrusion into the employee’s private life by dealing with them as part of a disciplinary process. However, if the employee’s behaviour outside of work is such that it has or reasonably could damage the reputation and business of their employer, for example, risking residents moving to another care home or the press reporting on the care home in a negative way, this can give the employer reasonable cause to commence disciplinary action and, potentially, to impose the most severe disciplinary sanction, that of dismissal.

This is not as straightforward as it may seem and there are a lot of factors to consider. For instance, how serious were the comments? Did the employee identify themselves as being employed by the employer? Who saw the tweets? Was there any evidence of actual or potential damage to the employer’s reputation? It is important to note that an employer disagreeing or being upset about an employee’s comments will not be enough, it needs to show reputational damage occurred or was likely.

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Tags : Best practice

The author Lee Peart

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