Disciplining an employee for posting racist comments online

19 July 2021

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.

Further Information

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.


Latest blogs & news

Your employment rights if your Russia-related job is being cut

In recent weeks, we have all been witness to the significant consequences of Vladamir Putin’s invasion of Ukraine – on a human and business level. Many financial institutions have shut-down their offices in Moscow with staff being let go or transferred, and there has also been a ripple effect over here in the City with an impact on banking jobs in London.

Understanding the benefits of flexible working

Moira Campbell and Jess Rice explain how employers can use flexibility as a way to attract and retain talent and promote workplace inclusivity.

Coronavirus: Living with Covid – the implications for employers

The government made its long-awaited Freedom Day announcement on Monday 21 February 2022 and later the same day the Cabinet Office published its paper Living with Covid. As a result, the legal landscape for employers and employees changed significantly on 24 February 2022. The legal requirement to self-isolate following a positive test was removed. Self-isolation support payments went too. From 24 March, the special provisions for the payment of statutory sick pay for people with Covid-19 will be removed. So is this all good news for employers? Will this help those who have been charged with managing their workplaces through what remains of the pandemic? Does it mean freedom for them, or something less?

LLP Partners – Secure in the Equity?

The default retirement age of 65 for employees is now only a distant memory, but mandatory retirement ages for LLP members remain common in professional services firms. In practice this can result in surprising and harsh outcomes.

Removing vaccination as a condition of employment

Health secretary Sajid Javid has announced that the government will launch a consultation on removing vaccination as a condition of employment in health and all social care settings. The regulations requiring front line health workers to be vaccinated against Covid-19 (Coronavirus) as a condition of employment were due to come into force on 1 April 2022, which meant that unvaccinated staff had until 3 February 2022 to receive their first dose so that they could be fully vaccinated by April.

Whistleblowing in the UK: In Summary

UK law has granted protection for those who raise concerns of potential wrongdoing in the workplace (whistleblowers) since 1999 through the Public Interest Disclosure Act 1998.

Recent tribunal cases involving Covid-19

Nick Ralph looks in detail at recent cases that have stemmed from the pandemic, including a refusal to attend work due to fear of contracting the virus.

Covid vaccination and the workplace – what you need to know

One of the most topical issues regarding Covid-19 is that of vaccination and whether it should be mandatory. 

Stories regarding big employers such as Citibank in the US mandating vaccination as a condition of employment (“no jab, no job”), the experience of great sports personalities such as Novak Djokovic and the decision of the Supreme Court in the US last week regarding laws mandating vaccination in the private sector, have all brought this issue into the spotlight.

So what is the legal position in the UK?  

How HR should prepare for a workplace investigation

Richard Fox and Clodagh Hogan explain the questions people professionals should ask prior to conducting an inquiry into a dispute between employees

Investigations being conducted into workplace disputes have increased recently, possibly partly due to the rise in the number of sexual misconduct in the workplace allegations since the advent of the #MeToo movement.

Planning is key to workplace investigations and, if you are considering carrying out an investigation, ask yourself the following questions at the outset:

Flexible working – fit for firms?

Much has been said about the proposed changes to the flexible working regime announced by the Government in its Consultation Paper on 23 September 2021.

Omicron is here. What does that mean for employers?

It is the cliché that keeps on giving.  Uncertainty remains the only certainty in this world of coronavirus and all its mutations.

At the time of writing, the number of cases in the UK of the new coronavirus variant, Omicron (technically, the B.1.1.529 variant), had reached 32.  This is likely to increase given the current view among scientists that Omicron may be more infectious than the existing Delta variant of coronavirus and vaccinations less effective against it.

How businesses can avoid misusing NDAs

Richard Fox and Georgia Roberts explain why employers dealing with sexual misconduct claims should tread carefully when requiring an NDA to be included in a settlement agreement

Improving diversity at the top

The Financial Conduct Authority (FCA) recently launched a consultation on proposed amendments to its Listing Rules aimed at improving diversity and inclusion on company boards and executive committees. In particular, they are seeking feedback on proposals to require listed companies to publicly disclose annually whether they meet specific board diversity targets, including in relation to ethnicity, and to publish the composition of their boards and most senior level of executive management. To understand why such proposals are necessary, it is important to consider the current state of ethnic minority representation in UK leadership, why diversity at senior levels is so vitally important and what steps can employers take to improve diversity.

The UK’s Data Protection Reform Consultation – Good News for Employers?

On 10 September 2021 the UK Government launched a Consultation on proposed changes to data protection law with the aim to “create a more pro-growth and pro-innovation data regime, whilst maintaining the UK’s world-leading data protection standards”. The proposals are designed to build on the UK’s existing data protection regime (contained in the General Data Protection Regulation (as it applies in the UK post-Brexit) (UK GDPR) and the Data Protection Act 2018).

The Home Office’s new “early ILR concession”

Progressive developments in immigration law have become a rare phenomenon, so the Home Office’s new policy – which halves the route to settlement for certain young people who have resided in the UK for more than half of their lives – is welcome news.

BEIS White Paper on Audit Reform: Will Kwarteng's reforms really unchain entrepreneurs?

In 2012, as a recently elected MP, Kwasi Kwarteng co-authored “Britannia Unchained: Global Lessons for Growth and Properity”, a political pamphlet which championed risk-taking and innovation in the UK economy, and which ever since has led some to label him a fervent Brexiteer. Appointed as the Business Secretary in January 2021, only a few months later his department (BEIS) published one of the longest and most ambitious government White Papers in recent years.

Barder: Exceptional and rare

Cate Maguire looks at how the Barder principle has been applied in cases involving 'known unknowns'

World Menopause Day - time to break the taboo!

World Menopause Day was held on 18 October 2021. It is an opportunity to break the stigma and taboo that still exists around menopause and to encourage open dialogue about what is a natural and very significant transition in a woman’s life.

Redundancy and negotiating an exit package during the pandemic

Coronavirus is having a serious impact on businesses and the global economy. Sadly, many businesses have been impacted to the extent that they have or will have to put cost-cutting measures in place. For some individuals this will result in their role being put at risk of redundancy.

Preparation for Public Inquiries - Webinar Summary

In light of the announcement that an independent inquiry into the Government’s handling of the coronavirus pandemic will begin in spring 2022, Kingsley Napley hosted a webinar last week on the theme of Preparing for Public Inquiries in conjunction with Blackstone Chambers and FTI Consulting. For anyone who missed this event, a recording is available here (LINK) and we have also prepared the summary below.  

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

Skip to content Home About Us Insights Services Contact Accessibility