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.
Latest blogs & news
We have seen examples 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?
Most disputes between partners of professional services firms are settled either through confidential negotiations or arbitration. A public resolution of the matter through a full hearing and reported judgment is a rare occurrence. A recent example of such a case involving an ex-partner of a law firm is a useful reminder that it is difficult to challenge profit share or bonus decisions as an irrational exercise of discretion.
In a case that attracted national media coverage and emphasises the crucial importance of regulatory compliance and the highest standards of professional conduct in the financial services sector, the High Court dismissed a breach of contract claim brought by an investment manager.
So the Prime Minister has announced that most restrictions in place due to the coronavirus pandemic will be lifted on 19 July, despite acknowledging that the pandemic itself is far from over and that case numbers are expected to continue rising.
In recent weeks, it has introduced a formal workplace policy providing paid time off for all staff who are directly or indirectly affected by pregnancy loss. This is not only a significant enhancement to the provisions required by law but is also, I understand, the first of its kind being put in place by a UK law firm. We hope other firms in our sector and beyond will follow suit and normalise protection in this space, thereby supporting the wellbeing of those affected and protecting talent.
When deciding whether to focus on the discrete allegations or look beyond them, employers need to balance confidentiality with duty of care to employees, says Mark McWilliams.
Employers need to show the individual’s behaviour clearly affected the organisation’s reputation or their colleagues, says Catherine Bourne.
According to the most recent NHS statistics 2,500 people are injured or diagnosed with a spinal cord injury every year. Indeed it is estimated that there are a total of 50,000 people living in the UK with a spinal cord injury of some sort. Unfortunately sustaining a spinal cord injury impacts on every aspect of a person’s life. Often, where everyday tasks are a challenge, returning to work may seem unrealistic. The fact is that employment rates among people with spinal cord injuries remain much lower than the general population.
There is currently no legal requirement to be vaccinated and the government has so far shied away from compelling people to be. Michael Gove’s review of the potential use of vaccine passports, expected in June, could alter the position. Employers can encourage staff to get vaccinated (as they may do with a winter flu jab, for example), provide access to medical information, allow paid time off to get the vaccine and provide sick pay for those suffering with side effects. However, insisting that employees are vaccinated could risk exposure to discrimination claims from those whose choice not to be vaccinated.
Failing to promote a good workplace culture based upon a firm’s core values is a potential regulatory issue.
The Financial Conduct Authority (FCA) recently launched a whistleblowing campaign, “In confidence, with confidence”, encouraging individuals working within the financial services sector to come forward and raise any concerns they have regarding potential wrongdoing, emphasising its commitment to protecting their identity and an increase in both resources and training at the FCA. The FCA also commits to create a report about all concerns which have been expressed and to provide updates to a whistleblower every 3 months if so requested.
In light of a recent EAT ruling, Nadjia Zychowicz and Eugenie Freeman discuss whether a high-performing employee should be awarded a bonus if the business is at risk of insolvency.
With many employers under significant pressure to cut costs, Moira Campbell outlines some possible options to consider other than reducing staff headcount.
The breakdown of a relationship is a challenging and stressful time, even when you and your partner are on relatively good terms.
There are a number of support services we recommend to help manage the strain which comes with relationship breakdown and the significant changes to your and your children’s circumstances. People often go first to friends and family and then perhaps to a lawyer, counsellor or financial advisor. Many people do not feel comfortable talking to their employer about their circumstances and in this blog, we explore how it can be important from both a personal as well as family law and employment law perspectives.
Equality and diversity training initiatives have received a considerable amount of negative attention recently. In December 2020, the government announced its intention to scrap unconscious bias training for civil servants. Since then, there have been press reports of senior managers allegedly claiming that unconscious bias does not exist and the training is just ‘virtue signalling’ and a waste of money.
So does this mean employers should now bin their diversity training? I don't believe so.
6 April 2021 will see the implementation of the biggest reform in the engagement of contractors for decades. The changes were originally scheduled to come into force on 6 April 2020, but implementation was delayed due to the coronavirus pandemic.
Last week we reflected on this year’s International Women’s Day theme #ChooseToChallenge and felt the impact of COVID-19 on women in the workplace cannot go without a mention. For the first time in nearly ten years, women’s economic empowerment in the workplace is set to decline according to PwC’s latest Women in Work Index, creating what has been coined a “shecession”, caused largely by the COVID-19 pandemic.
COVID-19 has had a severely damaging affect on all organisations and no less so those in the charitable sector. Be that on a dramatic hit to donation levels, resourcing issues through furloughing or redundancies and difficulties in delivering programmes and training. In a battle to survive and deliver on core services, it is easier than ever to forget crucial internal risk and compliance processes.
The BBC recently reported that women appear to be bearing the brunt of ageism at work. According to the UN, the number of people over the age of 65 is growing faster than any other age group and yet ageism is the most common type of discrimination in Europe with women being particularly disadvantaged.