Can a defamatory comment posted by an employee on their Facebook page be used as evidence in the employee's disciplinary proceedings?
Yes, a defamatory comment posted by an employee on social media can be used as evidence in disciplinary proceedings, provided that the evidence is obtained by lawful means. For example, hacking into an employee's Facebook account to obtain evidence of defamatory content would be unlawful, whereas if the employer accessed the content legitimately using its own Facebook account (or, more likely, the account of one of its employees with their consent), this would be lawful. In the absence of such evidence, the employer is likely to encounter difficulties in bringing disciplinary proceedings and imposing any sanction.
Assuming that the employer has obtained the evidence lawfully, the fact that a comment was discovered some time after it was posted by the employee will not necessarily prevent the employer from using it in disciplinary proceedings.
Where an employee is identifiable from comments posted online, those comments can amount to personal data. The employer will therefore need to comply with the General Data Protection Regulation (2016/679 EU) and Data Protection Act 2018 in respect of processing that data.