Page 27 - PWM2023_March

TECHNOLOGY REPORT

gated by Sky and she was taken off air for sought not to apportion blame but noted that she had ‘overstepped scriptive about an employee’s private
six months. “Usually,” says Trewhella, the line’”. use, but it can set out the standards
“conduct like this is unlikely to warrant Clearly stung by these troubles the new director general, Tim which employees are expected to follow;
disciplinary action by an employer Davie, made it clear last autumn (2020) that staff were not to for instance, not sharing sensitive busi-
where it occurred outside of work, how- express personal views that were likely to damage the BBC’s repu-
ever as Burley is in the public eye repre- tation for impartiality. ness information, not making defama-
senting Sky it was necessary for them to tory statements or negative comments
take action to protect their reputation.” Inside or outside? about the company or colleagues; or
People in everyday roles can also find posting inappropriate images.”
themselves in the spotlight. Delivery The fact that employees occasionally get into trouble is a given. Employment contracts should also
drivers are regularly ‘outed’ on social But are the risks the same if the matter occurs inside or outside of include a clause that allows an employee
media if caught behaving inappropri- the workspace or working hours? to be dismissed if they breach the code of
ately in a country that now bristles with For Trewhella, it is unlikely to matter if the conduct happened
domestic CCTV systems. And a road inside or outside of the workplace or working hours. She says that conduct laid out in the social media pol-
rage incident, for example, involving the “the most relevant factors are likely to be the seriousness of the icy.
driver of a company’s branded vehicle conduct, whether the conduct relates in some way to the employ-
can quickly blow up on social media or ee’s role or the organisation more generally, and whether the Investigating an allegation
end up splashed over a tabloid newspa- Once an allegation has been made, an
per. employee is publicly linked to the organisation.” investigation is the starting point for any
By the same token, Chander says that A similar stance is taken by Chander who says each case has to disciplinary hearing. But for a dismissal
there must be proportionality – that be considered on its own merits. The problem, she says: “Is that to be fair, the investigation must be thor-
employers don’t always win. As she the blurring of private and public life is becoming increasingly ough and carried out following the
highlights: “In one case that came before common as people share information via social media, assuming proper procedures otherwise the
an Employment Tribunal, the claimant that they are doing so privately.” Incidents of private messages employer risks falling foul of the ACAS
had been disciplined by his employer for and images being leaked are many – some are just embarrassing Code. As Chander warns, this “applies
whereas others do have capacity to cause real reputational harm.
telling a customer that service levels
Reputation rescue were being affected by lack of staff. His media about their employer could, in theory, lead to a charge of even if the employee’s misconduct
Chander suggests that posting derogatory comments on social
appears to be an open and shut case and
employer considered that his actions
the employee has admitted that they are
reputational damage if the company’s identity is obvious.
had brought the company into disre-
pute. The Tribunal disagreed on the “However,” she adds, “employers not only have to be very clear guilty of misconduct”. Experience has
basis that there was no evidence that the about why they consider the comments damaging, they must also taught Trewhella that an investigator
employee’s candour had damaged the check that their social media policy reflects the standard of online should try to keep an open mind and
customer relationship.” behaviour they expect of their employees.” look at all the circumstances surround-
And then there’s the risk that an ing the incident before deciding
employee can cause reputational dam- Policies protect whether disciplinary action is war-
age, either inadvertently or deliberately, Whether it’s dealing with harassment, uniform, timekeeping or ranted.
through social media. On this Chander discipline, policies have an important role to play. She explains that “if the organisation
tells how “there have been several high- For Chander, “a well-drafted policy will set out what is, and isn’t decides that disciplinary action is neces-
profile cases of employees expressing acceptable; in other words, if boundaries are clearly laid out, no sary a different manager should deal
views, or sharing the views of others, one will be able to say that they ‘didn’t know’ or ‘weren’t told’”. But with the disciplinary process; they
that are directly contradictory to the of course, having a policy is one thing but it needs to be communi- should be sufficiently senior and experi-
principles endorsed by their employer”. cated else it’s not worth the paper it’s printed on. enced in dealing with such matters and
She cites the example of the dismissal of A disciplinary and grievance policy should list examples of should not have been involved in the
Danny Baker by the BBC after he unacceptable conduct, including those that could bring the com- investigation”. During any disciplinary
tweeted a controversial picture after the pany into disrepute. It should also tie into a social media policy. meeting, the employee should be
birth of the Duke and Duchess of “That way,” Chander says, “no employee could plead ignorance.” allowed to bring either a colleague or a
Sussex’s baby. Trewhella doesn’t disagree. She says that provided that policies
The BBC was caught up in another are reasonable and have been communicated to employees, an trade union representative with them as
reputational issue after journalist Emily employer will be able to discipline an employee who then a companion, which is a legal right.
Maitlis shared her personal views on breaches it. She adds: “It is particularly important to ensure that Beyond that, Trewhella says that if the
actions of Dominic Cummings in break- all policies are properly communicated to staff and if necessary disciplining manager decides that a
ing lockdown rules. As Chander says, and they are provided training on them – simply drafting a policy sanction is warranted, “they should take
“many thought she broke the BBC’s and placing it in a drawer will not assist if you later need to rely on into account the seriousness of the issue,
impartiality guidelines and thus brought that policy.” the response of the employee to the alle-
the Corporation’s reputation into disre- As for a social media policy, she says that it should cover use of gation and their length of service and
pute. However, the BBC’s statement social media both in and outside the workplace. “It cannot be pre- previous employment record”.

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