For all its benefits and there are many, social media can present particular problems for employers.
The recent case of the Savill’s surveyor alleged to have tweeted racially offensive content at the Final of the Euros 2020 is a good example.
Reputational damage and vicarious liability
While it might be argued that activities outside of work have nothing to do with the employer, the case law clearly establishes that conduct away from the workplace can give rise to disciplinary action (including dismissal), where that behaviour can fairly be said to negatively and materially impact on the employment relationship. Essentially, has that relationship been sufficiently damaged such that the employer can no longer be expected to continue to employ the individual.
At the time of writing, in the Savill’s case the employee has been suspended pending an investigation, and the position is further complicated by the reported assertion that the individual’s Twitter account was accessed by others – the implication being that the offensive tweet was posted by someone else other than the employee.
In terms of the ordinary process in such cases, an employer will want to investigate and invite the employee to a formal meeting to hear any explanation or denial before deciding whether to take action. That of course takes time, and in the hothouse of social media the risk is that an employer appears to be prevaricating, or uninterested in the issue.
Where the offensive post is directed at, or even shared amongst colleagues in the workplace (and of course there has been a substantial increase in use of social media platforms amongst colleagues during the covid pandemic), the employer is likely to face claims of discrimination, harassment or victimisation from staff.
Minimising the risks
An employer will not be vicariously liable if it can show that it took all reasonable steps to prevent its employee committing a particular discriminatory act or committing that type of discriminatory act. The steps below can assist an employer in minimising this liability risk:
- Having a clear and robust social media policy, which is regularly reviewed and updated where necessary.
- Making sure employees are aware of the social media policy and know that their breach may result in disciplinary action up to, and including, dismissal.
- Training employees on what is, and what is not, acceptable use of social media.
- Being clear about the value placed on its brand, its image and its reputation.
- Ensuring the disciplinary policy lists bringing the employer into disrepute (or similar) as an example of gross misconduct.
What should an employer do about historic offensive posts, or those employees who do not exercise good judgment despite the measures above?
- Deal with disciplinary issues fairly and consistently (see below).
- Carefully consider whether a public statement should be published to address any offensive or inappropriate social media content, and if so, think carefully about what it should say (bear in mind the employee’s data protection rights)
In some circumstances, dismissal might be an appropriate consequence of posting offensive content on social media. Even individuals who posted such tweets prior to commencement of employment with the employer are not immune to disciplinary action - their words may still prejudice the employer’s business, its reputation or irreparably damage their working relationship and trust, resulting in disciplinary action.
The employer's decision to dismiss and the process followed in reaching that decision must fall within the ‘range of reasonable responses’ that a reasonable employer in those circumstances and in that business might have adopted. Therefore, treating an employee differently to how it has treated similar incidences in the past, or treating employees too harshly purely to satisfy the public’s reaction will only enhance the employer’s headache, as it has to respond to claims of unfair and/or wrongful dismissal!
If you would like further advice in relation to the above please get in touch with Simon Bellm
or your usual contact within the DMH Stallard Employment Team.