Reputational damage: six preventative measures for employers

If a line manager used this emoji in a text to an unsuccessful job applicant, how would it affect your reputation?

Protecting your organisation’s reputation is essential but how can employers ensure any damage is kept to a minimum? We list six ways you can reduce the risk.

Reputational damage – five risk areas for employers
XpertHR employment law editors Ellie Gelder and Stephen Simpson discuss what HR professionals can do to reduce the risk of their organisation’s reputation being damaged.

1. Implement a robust social media policy

Employers should implement and circulate a robust social media policy that sets out clear rules on social media use. For example, a policy can remind staff not to assume that comments they make on Twitter or Facebook are private.

The policy should also make clear that breaking the rules may lead to disciplinary action, including dismissal.

In Plant v API Microelectronics Ltd, the employment tribunal rejected the unfair dismissal claim of a long-serving employee with a clean disciplinary record who was dismissed over comments she made on Facebook about her employer.

The employer’s case was aided by its clear policy on employees’ use of social media.


2. Deal with inappropriate comments on social media

Where an employee has posted inappropriate comments about the organisation on social media, the employer should collect evidence and take steps to remove the material quickly by asking the employee to do so. The employer may also consider instigating disciplinary action.

In Creighton v Together Housing Association Ltd, the employer discovered that a long-serving employee had posted derogatory comments about the employer and his colleagues on Twitter up to three years previously.

The employment tribunal found that the employer’s decision to dismiss was within the reasonable responses open to an employer and was a fair dismissal.

This case highlights the need to expressly state, as the employer’s policy in this case did, that any personal use of social media that impacts the organisation may result in disciplinary action including dismissal.

If a former employee has made inappropriate comments, the employer may ask the individual to remove them.

In addition, it may also request the host site to remove the comments as well as consider bringing legal proceedings.


3. Train line managers in proper recruitment practices

It is important that line managers manage the process following a selection decision in a professional manner, especially when informing someone that their application has been unsuccessful, as a disgruntled applicant may reproduce it on social media.

Recent examples of recruitment mishaps have attracted widespread media interest, although they did not involve obvious breaches of employment law.

One case involved a job applicant tweeting a screengrab of a text message, in which the employer gave a sarcastic explanation of why she was unsuccessful, together with a cry-laughing emoji.

While another case concerned an email forwarded to the applicant by mistake, which described her as a “left-wing loon tree hugger”.


4. Warn staff of expected conduct outside the workplace

Misconduct outside the workplace can adversely affect an organisation’s public image. Line managers should warn employees about their behaviour in advance of a workplace or public event.

If an employee has committed a criminal offence outside work, the employer should consider dismissal only where continued employment would seriously damage the organisation’s reputation.

Relationships outside work can also cause reputational issues, for example, where an employee maintains a relationship with someone who is accused of a criminal offence.

In Governing Body of Tubbenden Primary School v Sylvester, the employer argued that the reason for dismissing a teacher, who continued her friendship with another teacher arrested for possessing indecent images of children, was the potential damage to the school’s reputation.

The Employment Appeal Tribunal accepted that the reason for dismissal was potentially fair.


5. Prepare for gender pay gap reporting

Large employers that fail to publish gender pay gap figures by the deadline of 4 April 2018 risk negative publicity.

Employers can avoid this by preparing for gender pay gap reporting now and putting their figures into context by producing a narrative commentary. A narrative can help limit potential reputational damage in terms of how the organisation is viewed by its customers, competitors and prospective employees.

Gender pay gap reporting is also an opportunity to highlight where the organisation has a small gender pay gap than that generally seen in the wider economy, or where the gender pay gap has reduced over time.


6. Consider adverse publicity before fighting tribunal claims

From February 2017, employment tribunal decisions are available online and can, therefore, attract negative media interest or put off job applicants from working for the organisation.

For example, a claim may involve a line manager who has behaved badly, or acted in a discriminatory manner.

It is even more important, therefore, for employers to consider the potential for reputational damage at the outset when deciding whether or not to defend a tribunal claim.

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