Misconduct: Messaging groups and social media

The National Golf Clubs Advisory Association (NGCAA) provides legal advice on what policies clubs should have on employees’ social media activities.

Communicating via messaging apps and social media is now commonplace, but it can create difficult issues for clubs where potential misconduct is committed by members or employees within those messaging apps or on social media.

What should a club do when they are faced with complaints from employees or club members about things said or shared in messaging such as WhatsApp, or in posts on social media such as Facebook?

Incidents can be difficult to address as the employee or club member often argue that the messaging groups or social media accounts are private and they are using their own devices outside of the workplace or club premises.

Conduct inside or outside of the club?

In general, in the context of staff members, conduct taking place outside of work can sometimes justify disciplinary action including dismissal. The key question is whether the conduct relates to the employment relationship. The club should consider if the nature of the conduct affects the employee’s work or relationships at work, or has caused damage to the club’s reputation. For example, conduct involving fighting between employees outside of work, has left one feeling unsafe to attend.

In terms of club membership, whether conduct outside of the club occurs and justifies disciplinary action, will depend on matters such as if the conduct affects the club’s reputation or if it is a breach of the club’s rules or standards of conduct.

Messaging between employees or members

What can the club do when an employee or member brings to the club’s attention something offensive that has been said or shared in messaging apps such as WhatsApp?

Where messages are sent via devices belonging to the club or in official club messaging groups then there should be clear grounds to monitor and address any inappropriate content or misuse, and those rights should be set out in a clear policy on monitoring of electronic communications between employees or members.

But what about in messaging groups set up between employees or members such as staff groups or informal competition groups? In those cases, even though those groups are not ‘official’ club groups, there may be good grounds to say that they are linked to the club and no different to staff or members making comments face to face. Therefore, if the club receives complaints of matters in messaging groups which if occurred face to face between staff or members would be considered misconduct, then it should take appropriate action. Depending on the particular case, that is likely to involve informal or formal disciplinary action.

In particular, if the messages could amount to bullying and harassment targeted at an individual or group, or the content is discriminatory and / or offensive in nature, it is likely to be considered equivalent to verbal comments / abuse to another employee or member and can be dealt with in the same way. The club should therefore take appropriate disciplinary action under its policies. If the club does not act in these cases, it may be seen as a failure to address discriminatory behaviour, which can increase the risk of the club being found liable in a discrimination claim.

In some cases where things are said or done in personal messaging groups and the groups cannot be said to be linked to the club in any way or have any impact upon work or membership, they may fall outside of work or the club. In those cases, action may not be warranted because employees or members can argue rights to privacy. If in any doubt, then the club should take advice. It will put the club in a better position if it has in place appropriate policies and rules.

Obtaining copies of the messages

Where a member or employee makes a complaint about the content of messages, they are likely to give the club a copy of the offending message. The club can then review and assess what action should be taken.

If the club is not able to see the offending message, for example, because the offended member or employee was not in the messaging group and perhaps reported seeing a message on another person’s device or being told about it, the club may have to take steps without seeing the message based upon the complainant’s description. If the allegations are untrue, then the accused employee or member may voluntarily disclose the evidence to prove their innocence. If they continue to resist, then matters will have to be investigated with others who may have been a party to or heard about the content of the messaging. In cases where the club is still unable to obtain a copy of the message, then a disciplinary decision may have to be taken without it based upon the available evidence.

Social media posts

Similar issues can arise in the case of staff members or employees posting comments or images to their own social media accounts. Disciplinary action and even dismissal has sometimes been found to be fair for these types of offences.

Whether action should be taken in those cases will depend upon the nature / content of the post, whether it can be linked to the club in any way and who can access the comment. The club will then need to consider whether the conduct impacts upon the staff member’s work or member’s membership.

The same applies as for messaging apps, where bullying or discriminatory comments are posted about another staff member or club member, this may justify action.

Where a post can be accessed by other staff or club members and the club is named as an employer or otherwise, or any imagery shown links to the club, there may be grounds to argue potential reputational damage. The main issue is usually whether it is likely the post will cause damage to the club’s reputation and the extent of that damage. Just because the post puts the club in a bad light however, does not necessarily justify action based on reputational damage.

It will once again be important to make sure employees / members know what is expected in terms of use of personal social media and reputation. Having a clear policy or communication about use of social media in a personal context will support any disciplinary action being considered fair or justified.

It can be possible to justify disciplinary action against members or employees, and in some cases dismiss employees or expel members, but the particular facts and impact upon the club and relationships have to be carefully assessed before proceeding

Action

Cases involving complaints of behaviour in messaging groups or on social media tend to depend on the facts, so specific advice on a case is recommended.

To put the club in the best position to be able to address the issue, it is essential to have clear policies and rules to set out the standards expected, what is considered misconduct and (where appropriate) that such expectations and rules extend to messaging groups and social media. Clubs should have in place policies addressing such matters, ensuring they are up to date, to include social media policy; electronic information and communications systems policy; disciplinary policy; anti-harassment and bullying policy; and equal opportunities policy. Additionally, for club members, these matters can be addressed in membership rules or codes of conduct.

As with all disciplinary cases against an employee, any misconduct should be dealt with in line with the club’s disciplinary procedure, including, carrying out an investigation into the misconduct, and holding a disciplinary hearing with the employee before any disciplinary sanction is decided upon. For further details of dealing with disciplinary matters, please see our website documents at www.ngcaa.co.uk or contact Alistair Smith on 01886812943 or office@ngcaa.co.uk