One of my employee has been tweeting at work from her mobile phone, complaining about her job. However, the Twitter account doesn’t have her name on it. I want to discipline her – do I have any grounds do so?
Yes. Next question? Actually it is not quite as obvious or simple as it appears. A number of provisos stand between you and your objective, and while these are probably surmountable, it is important that they are (and are seen to be) properly considered.
First, there is a thin but important line between griping about one’s job and about one’s employer. An employer that disciplines all those who carp about their job from time to time will run out of both reputation and staff in very short order. In moderation, everyone has the right to express some degree of dissatisfaction with their personal position. However, as soon as the complaint becomes related to the employer, whether the company itself or its staff, that becomes much more material.
Key pre-conditions to disciplinary action
You will need to be reasonably sure that:
Second, you have to show that the complaint is public. If it does not have your employee’s name on it, can anyone link the tweet back to your company or particular individuals within it? Without that link your employee becomes just another unpunctuated malcontent spraying her angst into the ether, without any direct impact on your business at all. Even if the general public will not reasonably make the connection, however, a critical tweet can still be your employee’s undoing if it is clear to her colleagues that she is the author. Their resulting ill-will and lack of trust (and the disruption to the work of the team) could easily form grounds for disciplinary action, potentially including dismissal if the tweet is particularly venomous or contains discriminatory language.
Third, if the tweets are clearly and unacceptably critical of your company or its staff or customers/suppliers then the fact that they may be made out of working hours or on a personal mobile is immaterial. However, if they are made in working hours this may add another ground for disciplinary action. On the face of it, she is spending work time on non-work matters, but is it really any more than those who gossip over coffee or take a periodic cigarette break outside? Where the thrust of your disciplinary action is the time lost by the tweets rather than their contents, it is important to ensure consistency of approach. In addition, unless continued after express instructions to stop, it is hard to see that just taking a little time out to post the odd tweet during the day could warrant much more than an oral warning.
Finally, bear in mind the faint possibility that the tweets are symptomatic of something genuinely serious within the workplace, a cry for help, as it were. If they refer to bullying, legal infringements or discrimination by management, for example, there may well be something going on that you do need to look at. Even if you disagree with the medium used, it is just about possible to argue that such tweets amount in the loosest sense to protected acts for victimisation or whistle-blowing purposes, and therefore that intemperate action to discipline or dismiss in response could be claimed to be victimisation. This is not an easy argument to run and temperate consideration of the question will generally entitle the employer to conclude that whatever the employee’s concerns, tweeting to the world at large is not an appropriate means of voicing them.
David Whincup, head of employment, London, Squire Sanders Hammonds