Ways to identify and remove sources of negativity

Spotting the signs early

So, how do you spot negativity in the workplace before it gets out of hand?

The effects of negativity spread through the workplace, so let’s take a look at the tell-tale signs.

Decreased productivity: Employees are getting things done late, their task output is lower, or they’re logged on at odd hours.
Unhelpful criticism: Employees snap at one another and give negative feedback.
Frequent complaining and moaning: Employees complain often, making others uncomfortable and creating a negative environment.

Low employee engagement: Employees are less engaged, have a low track record of attending events, and don’t show any team comradery.
Excuses and blame games: Employees show low accountability, pushing problems off on others instead of taking responsibility.
Yelling and screaming: Yes, seriously! Employees get into heated conflicts often and don’t practice healthy conflict resolution.
Negative workplace gossip: Employees engage in gossip often and form exclusive groups.
Unclear job roles and boundaries: Employees do each other’s tasks, either because of a lack of clarity or because of a lack of trust.
Bored employees: Employees lack morale, are inattentive, and spend long amounts of time on their phones and on social media.

Dealing with negative actions on social media

Social media sites such as Facebook, Instagram, and LinkedIn are part and parcel of an employee’s business and personal life. So, it’s not surprising that these are increasingly being used to air grievances about employers and fellow colleagues.

If a disgruntled or former employee chooses to post negative material about you as an employer online, or about one of their colleagues, it has the potential to cause serious damage to your reputation at the click of a button.

Publication of the material in question may also amount to a breach of your organisation’s equal opportunities policy, bullying and harassment policy, dignity at work policy, email and internet use policy or policy on the use of social media, and/or policy on social networking.

Policy on the use of social media

Whether any action you take against an employee is an appropriate course of action will depend on the specific circumstances of each case.

However, an employment tribunal will in the first instance take into account:

Whether or not there is a clear policy on the use of social media in place.
Whether or not such a policy makes clear what standards of conduct are expected of staff.
Whether or not the policy differentiates between conduct during working hours and outside work.
Whether or not the policy explains the possible consequences of a breach of the policy.
Whether or not staff have received training on the policy.

Important: You should ensure what you have in place is a clear policy on the use of social media and social networking websites, setting out the standards of conduct expected from staff and making it clear that a breach of the policy may lead to disciplinary action, including dismissal.

If you do not have a policy, it may make it difficult for you to defend any disciplinary action you take.

Defamatory statements about colleagues

Defamatory statements made by an employee about one of their colleagues will reflect badly on you as an employer and may have a negative impact on working relationships within the company.

An employee who has been defamed by a fellow employee may wish to raise a grievance, where this occurs you should follow the ACAS Code of Practice on disciplinary and grievance procedures.

Collecting evidence

As soon as you become aware of a negative comment that has been posted on a social networking site by an employee, you should begin collecting evidence that may be referred to in any disciplinary proceedings.

The evidence may include screenshots or printouts of the offending material and records of any complaints received from customers, any evidence of damage caused by the posting, and in the case of a claimant that trades for profit, any financial loss suffered, or likely to be suffered as a consequence.

The extent of publication should also be investigated, for example, whether there is unlimited access to the content or access is restricted, or how many “followers” or “friends” the employee has on the relevant social networking site.

When collecting evidence on an employee’s social media use, you must ensure that you do not disregard the employee’s privacy rights.

Removing the material

Promptly ensure the material is removed and notify the employee via email about the infringement (defamation, breach of contract, or Article 8 of the ECHR).
Outline potential consequences, including damages, and demand immediate removal of the material.
Inform the host website of the offending content. Many platforms, like Facebook, have automated reporting systems.
If removal is agreed, it should occur within a “reasonable” timeframe, though this is fact-dependent and not legally defined.

Disciplinary action

In situations where an employee has posted unlawful material, you should follow the disciplinary procedure and comply with the procedures set out in the ACAS Code of Practice on disciplinary and grievance procedures.
In some cases, the posting of statements that are detrimental to the employer’s reputation or amount to harassment of a colleague may constitute misconduct that is serious enough to justify the employee’s dismissal, provided that the employer follows the correct disciplinary procedure.
In very serious cases, such action may amount to gross misconduct justifying dismissal without notice. However, employment tribunals can apply a high threshold for action that is deemed to amount to gross misconduct.
In cases of potential gross misconduct, you should consider the employee’s previous disciplinary record, whether the employee apologised and took down the offending material immediately, and what damage was caused.

Factors to consider

Whether or not dismissal is an appropriate course of action will depend on the specific circumstances of each case. Factors that the employment tribunal may take into account include:

Whether or not there is a clear policy on the use of social media in place.
Whether or not the employer previously requested the employee to stop making such comments.
Whether or not the comments were made on a public forum.
How reasonably the employer acted in all the circumstances.

Whilsteblower protection

Before taking disciplinary action, employers should also consider if an employee who posts a derogatory or harmful comment online could be deemed to be a “whistleblower” and, therefore protected under the Public Interest Disclosure Act 1998. Disclosures made in this way would qualify for such protection only in very limited cases.

Former employees

If the potentially defamatory statement has been posted by a former employee, you should write to the former employee demanding removal of the content and put them on notice of the causes of action that you have against them.

These could include damages for breach of contract, or possibly an injunction, if the former employee’s contract of employment and/or any settlement agreement contain post-termination restrictions, such as clauses prohibiting the disclosure of confidential information or the making of derogatory comments.