The Question
Two members of staff posted pictures of themselves ‘planking’ on Facebook or lying in places that put their health and safety at risk – on top of a top shelf in a backroom and above the back door at work.
Comments have been made about this on Facebook, which included the manager saying: “I wasn’t in. Ha ha.”
We plan to investigate all three, but how far can we go with this? Could we go all the way to dismissal? We have a policy on blogging and social networking, which states:
‘Where a user has disclosed confidential information, breached the company’s data protection obligations or any of the company’s equal opportunities or Bullying and Harassment policies; failed to obtain consent before making a comment public; used official branding without consent; made disparaging or critical comments or has done anything which harms or could reasonably be expected to harm the company’s reputation or business interests, this will be treated as misconduct under the company’s disciplinary procedures and, in serious cases, will be treated as gross misconduct and could lead to dismissal.’
Legal advice
Esther Smith, a partner at Thomas Eggar
You are absolutely right to take action on this matter, given that the incident clearly relates to the workplace even if the pictures and information about it have already been circulated on Facebook.
There is a clear health and safety risk to those taking part and also potentially to other employees. There is likewise a management issue given the comments of the manger.
The policy wording that you have referred to about the use of social networking is useful in as much as the sharing of the ‘planking’ information could well be seen to bring the company into disrepute by suggesting a complete disregard for health and safety etc. But an equally important issue here, I think, relates to the employees’ actions in carrying out this activity in the first place.
The outcome of a disciplinary hearing will depend on what information your investigation throws up and what response or reaction you get from the employees concerned.
There may be a case for a gross misconduct dismissal, but I wouldn’t want to make that judgement until the situation was investigated fully. It may be that one employee is more culpable than the other or, indeed, that there are others involved who have not appeared in the pictures.
So until you have carried out an investigation, I don’t think it wise to prejudge the outcome. If you are in any doubt, take advice on the results of your investigation, however.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Adam Partington, a solicitor at Speechly Bircham
There may be an issue with using photos on Facebook as evidence of wrongdoing. For example, were the employees’ Facebook settings public? How did you gain access to the Facebook photos?
The staff concerned may try to raise arguments about rights to privacy and freedom of expression under the Human Rights Act 1998.
I cannot comment on the information available whether dismissal is a reasonable sanction in all circumstances. Misconduct justifying immediate dismissal is normally referred to as ‘gross misconduct’. Whether the employees’ actions amount to gross misconduct will depend on the circumstances.
Relevant factors may include the extent to which the ‘planking’ has actually put the individuals’ health and safety at risk; any previous disciplinary issues with the workers concerned (eg if they are already on warnings); the office culture and how equivalent behaviour is normally treated; the extent to which the company is identifiable from the photos; how much access the public would have to those photos (eg are the Facebook settings private or public?); whether the behaviour is entirely at odds with the image that the company wants to promote; whether actual damage to the company’s reputation is evident.
The manager may also need to be dealt with separately if his comment indicates that he tacitly condoned this behaviour. Again, any disciplinary action that you take against him may need to factor in the normal standards expected of managers; the normal levels of discipline that managers are expected to maintain and whether the manager did anything else to address the situation.
If there has been a delay in tackling this issue with your employees, it could be used against you as they could argue that if their actions were so serious that disciplinary action was justified, then the situation should have been dealt with sooner.
It is also worth bearing in mind that if the staff members have been employed by you for a year or more, they are, of course, protected against unfair dismissal. A lesser penalty such as a warning may be more appropriate. You should, however, obtain specific legal advice on this.
If you plan to take disciplinary action, it is important to conduct an adequate investigation and go through a proper disciplinary process following the company’s disciplinary procedures.
The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the minimum steps that employers should follow. A failure to comply with these minimum requirements can lead to an up-lift in any subsequent employment tribunal award.
Adam Partington is a solicitor at Speechly Bircham LLP.
