Following England’s loss in the Euro 2020 final at the weekend, a number of the team’s players faced racial abuse online. Marcus Rashford, Jadon Sancho, and Bukayo Saka, were the targets of the abuse after they missed spot-kicks in the penalty shootout with Italy. The abuse has rightly been widely condemned. The comments have prompted an investigation with some individuals being named and shamed and reported by the public to their employers.
This serves as a reminder to employers of the potential risks of discrimination claims arising where employees are utilising social media connected to their employment. Where an employee’s comments on social media sites are offensive or discriminatory in nature, employers can be vicariously liable, even where the comments are made outside of the workplace. It is vital for businesses to put measures in place to deal with employees’ use of social media to reduce the risks but also setting out what will happen in the event of a breach of any rules.
Employers are vicariously liable for acts of their employees during the course of employment but can establish a defence to discrimination claims by showing that they have taken all reasonably practicable steps to prevent discrimination taking place. This could include additional guidance issued in line with an equal opportunities policy, equal opportunities training or swift disciplinary action in light of employee misconduct conduct to prevent any repeat.
Guidance for Employers
Employers should have a clear and properly applied social media policy in place governing the use of social media at work, regulating employees’ personal use and how individuals’ market themselves on behalf of the business using social media. The policy should make the employer’s position clear and employees should be fully aware of any disciplinary action they may face for breaching the policy. Employers need to ensure that any policies are kept up to date and applied consistently by managers, with employees informed of any changes made.
Any related policies, such as disciplinary and grievance procedures, equal opportunity and diversity, bullying and harassment are updated to reflect the employer’s position in relation to social media.
Employers need to consider whether employees are permitted to refer to their employment on their social profiles, whether they are authorised to speak on behalf of the employer and, if posting personal comments, to wat extent employees need to make clear that such views are their own and not that of the employer.
Even if a social media profile is not linked to the employer, a very public backlash to tweets or posts in which the employer is identified could nevertheless warrant disciplinary action. Conduct outside of the workplace can nevertheless result in fair dismissals if there is an adverse connection to the employee’s ability to perform their role. If an employer is facing significant reputational damage by continuing to employ an identified rogue social poster, dismissal could be a reasonable response.
Where any post is clearly linked to employment, it is of course possible for employers to dismiss fairly for serious breaches of any social media policy but employers should ensure that they don’t deal with it in a knee-jerk manner. Any misconduct linked to social media must be dealt with in the same way as any other instances of misconduct. Employers need to investigate carefully, which will include identifying how many views or interactions any offending post has had and the type of people who have viewed it. The ACAS Code of Practice on Disciplinary and Grievance Procedures should be followed and the employee given an opportunity to defend themselves against any allegations at a disciplinary hearing.
If you have any queries about social media in the workplace or have any other employment law queries, please contact our Employment Team on 01228 552600 or 01524 548494.