The proud moments when our men’s football team made it to the Euro 2020 final and Lewis Hamilton won the British Grand Prix have been overshadowed by the reprehensible racism exhibited by a noticeable minority through physical violence, criminal damage and online posts.
We have seen examples in the media of people being ‘outed’ for posting racist comments online by individual bystanders who have been able to find their LinkedIn profiles and then contact relevant employers calling for the employee in question to lose their job. Unfortunately, this is nothing new. But what can an organisation do in these circumstances, if it wants to demonstrate that it stands against racism and discrimination?
Why take action?
The way that an organisation responds to issues like this sends a message about its ethos and culture. Demonstrating a firm approach to racism and discrimination is not only the right thing to do morally but it can improve employee confidence in the organisation, which can assist with employee retention and attracting good people. Furthermore, if the employee can be identified as an employee of the organisation, this can also damage the wider reputation of the organisation and damage relationships with employees, clients and customers. Setting an example may also deter others from being racist online.
Can you discipline employees for personal social media posts?
Depending on the posts in question and the wider circumstances, even if this takes place outside of work, this could be regarded as misconduct and may also be considered a reputational issue for the organisation, both of which may warrant disciplinary action (including dismissal).
However, it is always important to follow a fair process, conduct a thorough investigation of the incident, have evidence of the posts, likely audience and reach (for example, the number of impressions a post received to evidence the potential damage) and importantly to give the employee in question a chance to plead their side of the story and any mitigating factors.
Is it appropriate in the circumstances?
In the absence of clear contractual obligations prohibiting such conduct, for an employee’s conduct outside work to form the basis of a fair dismissal, it must affect (or at least be capable of affecting) the employee’s work or the employer.
The first link tying the employee’s conduct to their job, and their employer, is the employer being identifiable from the posts. This could be where the employee’s social media profile specifically states who they work for or where the posts have been reported to the employer by another individual.
If the posts are available completely publicly, for example on Twitter, or on sites such as Facebook or LinkedIn where colleagues, clients or customers can see, this would indicate a risk to the organisation’s reputation. Pressure from third parties (including other employees, customers and/or suppliers) for the employer to take action against the employee can also be taken into account when investigating these matters. Please do note that monitoring employees online throws up some very tricky data protection and privacy issues.
Employers need to ensure that disciplinary action is reasonable, taking into account all of the circumstances. Regardless of good intentions, if employers do not follow a fair process when dismissing an employee, they would be very likely to lose an unfair dismissal case. This would not only incur the substantial legal costs involved in defending such a claim, but could leave them liable for a year’s salary (plus a 25% uplift for failure to follow the ACAS Code). That said, contributory conduct can be taken into account by a tribunal, which in some circumstances could reduce the compensation to nil even when the disciplinary process followed was not fair.
How would an Employment Tribunal assess the case?
Cases considering the fairness of a dismissal on the basis of conduct outside of work will always be highly fact sensitive and the usual "range of reasonable responses" test applies.
In order to pass this test, employers must take a proportionate view of all of the circumstances. Appropriate considerations might include:
- The conduct in question – what did the posts contain? Would it amount to a criminal offence?
- Consider the impact/potential impact on the organisation versus the impact on the employee in question.
- Has the organisation’s stance on matters of equality been made clear to the workforce? Is this clear in contracts, policies and training?
- Are there aggravating or mitigating factors?
Making it easier to manage these issues
Having a clear policy, categorising posting or sharing racist or otherwise discriminatory posts on personal social media accounts as gross misconduct, can make justifying disciplinary action much more straightforward. However, the response will still need to be reasonable overall and employers should also maintain a consistent approach to such matters.
When training staff, it is important to make clear that the employer has a zero tolerance policy when it comes to racism, discrimination and harassment. Explain the reasons for this, and the consequences.
If you need advice on this topics covered in this blog, please contact a member of the Employment Law team.
About the Author
Nadjia Zychowicz has versatile experience supporting corporate and education sector clients as well as senior executives in a broad range of employment law matters. Nadjia is meticulous and methodical in style and puts her clients at ease with her approachable nature and direct manner.
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