Following the Euro 2020 Final, many took to social media sites to voice their disappointment. However, that evening, and the days that followed social media sites were flooded with posts and comments, which saw three of England’s footballers subjected to abhorrent racial abuse.
But where does this leave employers, whose employees have been involved?
It is important for employers to protect their businesses from any reputational damage that could occur by an employee posting offensive material on social media.
An employer may be made aware of certain comments, and understandably will want to take action. However, employers must take care when dismissing employees for misconduct in order to avoid claims of Unfair Dismissal (s94(1) ERA 1996); by those employees with more than two years continuous service.
In order to fairly dismiss an employee for reasons of conduct, the employer must follow the test set in British Home Stores Limited v Burchell , and show:
- At the time of the dismissal it believed the employee to be guilty of misconduct;
- There were reasonable grounds for doing so; and
- They had carried out a reasonable investigation.
There is a crucial tool, which employers should have in place in order to strengthen their position when making dismissals due to employee misconduct on social media – a social media policy.
Social media policies
The purpose of a social media policy is not to prevent employees from using social media sites in their free time; rather it is to provide clear rules that employer’s expect their employees to understand, commit to and follow.
A coherent policy should detail what conduct on social media would amount to misconduct, namely;
- Bullying and harassment – other members of staff or third parties;
- Disclosing confidential information;
- Writing disparaging comments about the employer, employees or customers; and
- Writing or publishing offensive material, which brings the employer into disrepute.
ACAS states that any dismissal in response to misconduct online should be ‘proportionate’. Whilst each case will be different, dismissal for an isolated incident of misconduct will not always be fair. Although, having a social media policy in place, and taking steps to ensure employees understand its contents, will increase the likelihood of successfully defending a claim of unfair dismissal.
Having an effective policy in place is an important precaution. However, sufficient training in respect of that policy is paramount to minimise employees behaving inappropriately or offensively online.
The case of Miss M Abdi v Deltec International Courier Ltd  confirmed the importance of all employees receiving thorough training on issues of equality, diversity and inclusion not only to deter employees from acting inappropriately, but also to outline the appropriate course of action for senior management in dealing with such issues, should they arise.
The case involved an employee being a victim of harassment after discovering a group chat dedicated to racially abusing her. On reporting the matter to senior management the Claimant was advised that the situation was nothing more than a ‘he said, she said’ situation.
The Employment Tribunal held that the employer handled the situation ‘inadequately’ and the claimant was subsequently awarded £24,945.72 in respect of injury to feelings and financial losses.
Monitoring your employees
Whilst it is likely that certain comments, especially those published on Twitter, or in a WhatsApp group chat may be brought to an employer’s attention; it is not uncommon for employers to want to monitor their employee’s social media. However, this must be done with care and transparency in order to avoid breaching the implied duty of trust and confidence.
Employers must also be mindful of Article 8 of the European Convention on Human Rights: Respect for private and family life. Arguably if comments are posted on a social media site the employee has jeopardised this to be a ‘private’ action.
The best practice for an employer to monitor their employee’s social media accounts is to notify their employees, by setting out their intentions at the beginning of the employment within the social media policy. This should include, when this may occur, the nature and the duration of the monitoring.
In addition to the potential reputational damage an employer may face, there is also the issue of vicarious liability. If the employee posts on social media ‘in the course of employment’, the employer can be held vicariously liable for those actions.
Further, employers can be vicariously liable for online harassment committed by an employee if the recipient is another employee, despite being outside of working hours.
Similarly, for cases of discrimination employee’s actions are treated as having been done by the employer. If the employer can show it took steps, like those mentioned above and that were reasonably practicable to prevent such action – they will not be liable.
Should you need further advice on this subject, please contact our Employment team on 01227 763939.