It has come to our attention that an employee has made derogatory comments about their manager on social media. The individual’s Facebook page is set to private; however, a colleague who is a friend on Facebook viewed the comment and informed management and would like to be kept anonymous. How can HR approach this situation?

Recent case law has demonstrated that employers can find it difficult to deal with alleged misconduct involving an employee's use of social media sites such as Facebook. The first difficulty for employers is how this specific type of misconduct is characterised, for example, whether the misconduct consists of damaging the employer's reputation, or breaching a duty of confidentiality or a dignity at work policy. Secondly, the employee may argue that the conduct takes place outside work and has no bearing on the employment relationship, possibly asserting that their right to privacy has been infringed.

There are two key cases in GB which are worth considering in this context. In Preece v JD