England’s men’s football team making it to the Euro 2020 final was tainted by the racism exhibited by a minority, particularly online. We have seen examples in the media of people being named and shamed for posting online racist comments. This has even gone as far as finding a LinkedIn profile and then contacting the relevant employer, calling for the employee in question to lose their job. What if that employee works for you?
Should you act?
The way your business responds to issues like this sends a message about your principles 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 business. That helps the business by retaining employees and attracting good people.
If the employee can be identified as working for you, this can damage the reputation of your business and damage relationships with other employees, clients, and customers. Setting an example will deter others from being racist online.
Can you discipline an employee for personal social media posts?
Even if this takes place outside of work, it could be regarded as misconduct, potentially gross misconduct, and may also be a reputational issue for your business. It may be appropriate to dismiss. However, it is always important to follow a fair process: conduct a thorough investigation of the incident, have evidence of the posts and their likely audience and reach. Don’t jump to conclusions. Give the employee a chance to plead, explain and advance any mitigating factors.
Is dismissal appropriate?
Unless you have clear contractual obligations prohibiting such conduct, to fairly dismiss an employee for activity outside work, it must affect or be capable of affecting the employee’s work or your business.
The first link that ties the employee’s conduct to their job and your business, is your business being identifiable from the posts. This could be where the employee’s social media profile specifically states for whom they work or if the posts have been reported to you by someone outside your business.
If the posts are available publicly, for example on Twitter, Facebook, or LinkedIn, then colleagues, clients and customers can see them. That risks damaging your business’ reputation. The press may be interested.
You should also consider pressure from third parties, such as other employees, clients, or suppliers for you to act. Ensure that disciplinary action is reasonable, considering all of the circumstances. Regardless of good intentions, if you do not follow a fair process when dismissing an employee, you are 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 you liable for a basic award (calculated in the same way as redundancy payment), up to a year’s salary, and an uplift of up to 25% to the year’s salary for failure to follow the Acas code of practice on discipline and grievance)
How would an Employment Tribunal assess the case?
Cases that consider the fairness of a dismissal owing to conduct outside work are highly fact-sensitive and the ‘range of reasonable responses’ test would apply. In order to pass this test, employers must take a proportionate view of all of the circumstances, including, but not limited to:
- What did the posts contain?
- Did the employee commit a criminal offence by posting?
- Does the impact or potential impact on the organisation outweigh the impact on the employee in question?
- Have you made the business’s stance on equality clear through contracts, policies and training?
- Are there aggravating or mitigating factors?
How can you protect the business?
Policy
Have a clear policy that says posting or sharing racist or otherwise discriminatory posts on personal social media is gross misconduct. You must still respond reasonably and maintain a consistent approach to such matters.
Training
When training staff, emphasis that your business does not tolerate racism, discrimination, or harassment. Explain why and the potential sanction.
Remind
Remind employees of their responsibilities outside work and that their conduct can affect your business and jeopardise their employment
