Is allegation reasonable?

[Help4SomeoneElse]

As the name suggests, I am asking for someone else

Employee puts post on social media. Employer has a look and decides it contains personal details of a customer. Employer's solicitor is shown the post and says it doesn't contain any personal details at all. An investigation is held to find out if it was the employee who put the post on social media; and only establishes that it was. After being told by their solicitor that no personal information was in the post, would it be reasonable for the employer to then invite the employee to a disciplinary hearing with the allegation that "posting the personal details of a customer on social media has damaged the business"?

TIA

[ULA]

Re: Is allegation reasonable?

The employer, although having been advised by their solicitor that the post did not contain personal details of the customer, may be concerned about the wider issue of having employees post any information about custimers on their own social media. It may be on that basis that they are initiating disciplinary action.

Does the employer have any policy to cover social media or some such other related policy?

[Help4SomeoneElse]

Re: Is allegation reasonable?

I agree there may be wider issues they had concerns over, but that is not the allegation. The allegation is specific in that personal information was published and that publication of the personal information damaged the business. If the allegation is reasonable despite no personal information being published, would they then have to show that personal information was published and that damage was caused by its publication in order to issue a warning?

The employer has a one line social media policy which says don't post anything on social media to do with the business. Breach of social media policy was not the allegation. Publishing personal information is very serious, breach of social media policy can range from non-serious to very serious depending on what was published.

[ULA]

Re: Is allegation reasonable?

Firstly, the "one line social media policy which says don't post anything on social media to do with the business", effectively means that so if the individual posted anything on social media about a customer of the business whether it was personal or not then the company would have a reason to conduct a disciplinary hearing.

In the letter inviting the person to the disciplinary meeting did they provide any further documents detailing why they believed the information was personal or what damage the business has suffered as a consequence. They should ideally provide this information in order that the individual can prepare their case/defence in advance of the meeting.

[Help4SomeoneElse]

Re: Is allegation reasonable?

Firstly, the "one line social media policy which says don't post anything on social media to do with the business", effectively means that so if the individual posted anything on social media about a customer of the business whether it was personal or not then the company would have a reason to conduct a disciplinary hearing.

Totally agree that there was a reason to hold a disciplinary. It's just the seriousness of the allegation and the lack of any evidence to back it up which is a sticking point.

In the letter inviting the person to the disciplinary meeting did they provide any further documents detailing why they believed the information was personal or what damage the business has suffered as a consequence. They should ideally provide this information in order that the individual can prepare their case/defence in advance of the meeting.

The only document which was with the invite letter was a copy of the investigation notes. The investigation asked if the employee had made the post, and he admitted to making it. There was no investigation into what damage was caused by the post. No other documents detailing why it was considered personal information were included. Because the employee admitted to making the post, the employer took that as an admission of posting personal information.

[ULA]

Re: Is allegation reasonable?

Has a disciplinary hearing now taken place if so what was the outcome and had the person been given the right to appeal? Or has a hearing date been set?

[Help4SomeoneElse]

Re: Is allegation reasonable?

He tells me the disciplinary was wednesday and he got a final written warning for publishing customer personal information. In his defence he had a print off from an ICO site which states what personal information is and argued that what he published did not fall into the official definition. Company were having none of that, they decided it was personal information and gave him the final warning which is also his first warning. He now wishes to know if he can appeal and on what grounds. He has until next tue to put an appeal in.

[ULA]

Re: Is allegation reasonable?

He does have a right to appeal and as you have indicated in your post he has been told he has that right. The appeal should be heard by someone who has not been involved in either the investigation or the disciplinary hearing.

What he will need to do is go back to the specifics of the allegations as detailed in both the letter inviting him to the disciplinary hearing, what was said at the hearing and the details in the letter confirming the outcome of the hearing. He will then need to prepare an appeal which details why he believes the allegations are incorrect i.e. he did not publish personal information pertaining to the customer and the reasons why. If he has any supporting documentation that should also form part of the appeal.

[Help4SomeoneElse]

Re: Is allegation reasonable?

He says he has two defences. The first is the ICO print out which shows the its not just his opinion on what personal information is, it is the officially recognised definition and that says it was not personal information. The second is that they said he damaged the business but did not say how it was damaged and did not say how they measured the damage, and they did not investigate damage to the business. To give a final written warning as a first warning the disciplinary procedures are quite clear in that an investigation has to show damage was caused. This means they did not follow their own procedures when they gave him the warning. He suspects they will just ignore that procedures were not followed and stick to their own opinion that it was personal information and keep the warning in place. I will let you know next week. Thank you for your assistance.

[Help4SomeoneElse]

Re: Is allegation reasonable?

He had his appeal this morning and has been emailed the decision with a letter to follow. The warning was upheld because "you admitted to the action of making the post, the disciplinary found that the post was unacceptable and warranted a first and final written warning being issued. You have now exercised your right of appeal under our procedures and this decision is final".

No mention of personal information or how the business was damaged. He said he asked during the appeal how the business was damaged and the appeal officer replied 'I dont have the details on the specific damage but the disciplinary hearing found you had caused damage and that is all I need to know'. The disciplinary made an allegation of damage being caused but didnt find damage was caused because they didnt investigate that allegation. At what point does an allegation become a finding a fact if the allegation isnt investigated?

[ULA]

Re: Is allegation reasonable?

From what you have said it would appear that the company has found on the wider issue which is that they have a "one line social media policy which says don't post anything on social media to do with the business" and the individual concerned went and did just that. Albeit this was not what they claimed in the allegations leading to the disciplinary action.

It seems that the company should have focused on the wider issue being the main allegation for the disciplinary action, if they had done it may well have been that they would have come to the same conclusion in regard to the disciplinary action taken.

[Help4SomeoneElse]

Re: Is allegation reasonable?

I get that there were wider issues but as those issues were never mentioned or even alleged then how was my friend given a fair chance to defend against them. He defended against the allegation that was put to him but it seems they were judging the disciplinary in relation to different allegations. Even if the wider issue was the main allegation, disciplinary procedures state the investigation had to show an affect on the business before such a warning could be issued; dont they still have to comply with their own disciplinary procedures? They didnt investigate the actual allegation and they didnt investigate the wider issues so wouldnt that in itself make the warning unfair? As the disciplinary procedures form part of the employment contract, has the employer now breached the employment contract by not complying with the procedures on issuing the warning?


---update----

Ive just checked with my friend; a breach of procedure will be a verbal or written warning. If it is shown that the breach damaged the company then a final written warning will be issued.

Breaching the social media policy was a verbal or written warning unless the company could show damage to their business. The company did not show damage to the business so the warning has clearly been issue against company disciplinary procedures.

[ULA]

Re: Is allegation reasonable?

Can I clarify the point in your post about the disciplinary process being contractual?

Is the company's disciplinary procedure incorporated into the person's contract of employment or just contained within an employee handbook. If the former it is contractual if the latter then it is non-contractual.

[Help4SomeoneElse]

Re: Is allegation reasonable?

Its contained within the employee handbook but his contract of employment states the handbook forms part of his contract of employment.

[ULA]

Re: Is allegation reasonable?

If the clause clearly states that the employee handbook in contractual and part of the contract of employment (which is more unusual but nevertheless does happen) then I would suggest that a grievance is raised in which case this needs to be done in accordance with the company's grievance procedure and as soon as possible.

The grievance will be based on the fact that the company has not followed its own disciplinary procedures. The allegation made in the letter of (insert date of letter inviting to disciplinary hearing) was (details exactly what the allegation was) and that the disciplinary policy states that "an outcome of a breach of procedure will be a verbal or written warning. If it is shown that the breach damaged the company then a final written warning will be issued". The company has not been able to substantiate what damage was done by the allegation therefore the outcome is not in accordance with the contractual disciplinary procedure.