This month Layla is on the case of an employee who has been discussing remuneration packages on Facebook. What should be done and would you deal with it this way?

The case

It has been reported to the HR manager that an employee working in the payroll department has been discussing matters relating to a number of her colleagues’ remuneration packages. The discussions have taken place via a number of conversations she has been having with her “friends” on her Facebook page. The company does not have a separate social networking policy, but its disciplinary policy provides that any unauthorised references to the company on social networking sites that its employees participate in is considered an act of misconduct which could lead to disciplinary action.

How should this matter be handled? 

This matter warrants disciplinary action being taken against the employee, and could certainly be deemed an act of gross misconduct which could legitimately result in the company deciding to terminate the employee’s employment summarily. The main issue, however, is the breach of confidentiality as a result of the publication of the details of the employees’ remuneration packages on the Facebook page. This should be the principal or main reason for the disciplinary action.

As part of this however, the method in which the breach of confidentiality occurred should also be considered as part of the same disciplinary matter. The company could add a secondary allegation of misconduct relating to the disclosure of highly sensitive work related information on the social networking site, Facebook.
 
This act alone would not perhaps warrant summary dismissal. However, as a standalone matter where issues of confidentiality (or indeed other forms of gross misconduct) do not form part of the disciplinary investigation, discussing company matters, or bringing the company into disrepute on a social networking site could certainly justify disciplinary action against the employee.

For example, in a situation where an employee posts messages on their Facebook page in which the employee is stating how awful his/her line manager is, or how they hate working for a certain person, this could warrant disciplinary action being taken against the employee.

With the rise in popularity of networking sites such as Facebook, MySpace, Bebo and Twitter, it is essential that employers implement within their staff handbook, a separate social networking policy. 

This policy should state whether or not accessing these sites at work is permitted. If it is permitted, the policy should provide guidelines of what is deemed excessive use of these sites during working hours.

The policy should also advise employees of what information can and cannot be said on the social networking sites about their work, and their workplace. As part of this, employees should also be made aware that any behaviour outside the workplace which could impact on the company, or have a negative bearing on the company’s reputation, could also lead to disciplinary action being taken against the employee.

Finally, it is also important that the policy reminds people that contact with their work colleagues outside the workplace is generally considered work related contact, and that unwelcome contact or excessive contact with colleagues and/or customers and/or suppliers of the company on these social networking sites could therefore still be deemed a form of harassment which the company will treat as a disciplinary matter.
 

• Layla’s column this month raises issues we’re all facing or are now very close to facing. Do you have a social networking policy? Would you react in this way? How are you coping with potential breaches of confidentiality or simply negative comments in the public domain?
   

 Layla Bunni is a senior associate, specialising in employment law at Starr & Partners LLP. She advises on a wide range of both contentious and non-contentious employment issues.