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Why social media incidents need investigation

9th Nov 2022
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An open channel for opinions, criticism and gossip: use of social media by employees constitutes a threat to workplace relationships and reputation that never goes away.

It’s also posing another kind of problem for HR. Because social media content is transparent as a form of evidence, there’s also the danger that employers see negative posts and malicious content as cut and dried evidence of misconduct. It’s there in black and white. Not hearsay.

A recent employment tribunal has demonstrated how even the most straightforward looking case might not be so imple. HR need to show they’ve looked at situations properly and carried out any investigation to professional standards.

A worker at a pub in Lincolnshire was sacked after they’d shared a post on Facebook about their boss. The original post — which suggested the boss was ‘creepy’ and guilty of acting inappropriately with female customers — was written and posted by the employee’s boyfriend, who’d previously worked at the same pub.

The employee deleted the post an hour afterwards, but not before the pub’s management had been made aware of what had happened. The employee was sacked on the basis of gross misconduct. A subsequent employment tribunal concluded that management had been unfair, and the employee was awarded more than £3,000 in compensation for lost earnings: “She took the Facebook post down very quickly and apologised for it. She did not write the post and was not acting vindictively or deliberately to damage the [bar’s] interests. She made a mistake, for which she paid.”

Essentially the tribunal was concerned by the lack of a proper investigation or right to appeal.

When it comes to any threat, including the newer, more unfamiliar threats from social media, HR need to make sure investigations are carried out in a professional way, with practices that are in line with current best practice standards — and don’t rely on ad hoc internal interventions. The quality of conversations is what makes the difference between dealing with challenge and change in constructive ways, with a shared sense of understanding and purpose, and a collapse into conflict.

Involving independent expertise reduces your risk of mishandled cases, and lessens the reliance on HR and senior managers in time-consuming activities. Critically, using an independent investigator limits the potential for failure at appeals and the risk of claims being escalated into formal employment tribunals.

When an organisation makes use of the informal method of mediation to help with an early resolution to conflict they know whether the mediator is trained in best practice and is working to professional standards. The same has not been true for investigations. Despite the high level of risk and threat to employers posed by cases requiring investigations - most often involving serious allegations of misconduct, bullying, harassment and/or criminal behaviours - there have been no processes to ensure good practice. Investigators will, at best, tend to receive a day of training. In other words, the people involved with working out evidence for a complex and painful sexual harassment case will have far less training than those looking into a health and safety case of staff falling off a ladder.

Secure, watertight investigations are based on three pillars:

Integrity: all of the process, people and policy involved in the investigative process must demonstrate independence, impartiality and fairness; they should be clear about the necessary commitment to being guided by the evidence and eliminating bias; with awareness of the impact of social identity on their judgement. Investigations shouldn’t just be handed over to senior managers - those most liable to make snap judgments based on what they think they already know.

Transparency: the process, people and policy need to demonstrate openness and honesty with stakeholders, in order to give confidence in the fairness and rigour of the process while maintaining confidentiality.

Proportionality: should be applied at all times, not only to the timeliness of the process, but to the volume and relevance of the evidence obtained in relation to the severity and complexity of the issues and the likely outcome and impact on the parties and organisation.

Taking short-cuts in the context of the modern workplace is dangerous. Employment tribunals regularly cite failures in the handling of investigations, and the collapse in cases can lead to large payouts, embarrassment for HR staff involved, and damage to perceptions and levels of trust among the wider workforce.

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By jennyjoe
25th Nov 2022 12:27

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