What should an employer do about an employee who has made unfavourable and unfounded comments about the company on a social networking site? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
The question:
We held a disciplinary meeting with a member of staff. After the meeting, this member of staff went home and posted comments about the company on a social network site. Where would we stand as a company, regarding the comments made? The comments are not very favourable and totally unfounded. Could we state that they are slander and discipline this member of staff for posting these comments? Any advice regarding any of this would be appreciated.
Legal advice:
Esther Smith, partner, Thomas Eggar
This is sadly becoming a more common problem with the advancement of such social networking sites. The comments made may amount to slander, although this is, strictly speaking, a litigation matter rather than an employment matter. However, in very broad terms if the comments are untrue and the posting of them on the site amounts to ‘publishing’, and they have the effect of causing the opinion of right-minded people to think worse of the company, then there may be a claim.
From an employment perspective, given that the comments are related to work and are derogatory to the company, you could try to deal with this matter as a disciplinary matter on the basis that comments amount to either a breach of the mutual trust and confidence and/or the duty of fidelity. Depending on the content of the comments, there may also be a breach of confidentiality.
However, in order to deal with it in this manner the employer must be clearly identifiable to others who read the comments.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
* * *
Martin Brewer, partner and employment law specialist, Mills & Reeve
Unfavourable comments are not necessarily defamatory and you cannot discipline a member of staff just because they speak their mind. However, you may take the view that the comments are so dreadful as to bring the organisation into disrepute, (which you would have to prove on the balance of probabilities).
If serious enough such comments may show that the employee has behaved in a way that has destroyed or seriously damaged the essential bond of trust and confidence. Again you would need to be able to prove this. If so this would be a fundamental breach of contract and allow summary dismissal. An employer would and should expect an employee to behave in a responsible and professional manner and respond appropriately to what happens at work. Clearly this employee seems unable to do so.
Obviously depending on the precise comments you can do nothing, discipline or, in a sufficiently serious case dismiss. You must however follow a fair process including giving this employee an opportunity to explain his comments and the way he reacted in general.
Martin Brewer can be contacted at [email protected]. For further information, please visit Mills & Reeve.
* * *
