Famous cricketer Ollie Robinson made the headlines recently. But he wasn’t in the news due to incredible innings…it was because a number of his offensive tweets resurfaced from the past.
As Robinson faces suspension as a result, the story threw up uncomfortable questions for employers.
Questions like, should you step in if a troubling social media post comes to light – past or present? And if so, what disciplinary action can you take? Read on to find out…
What does the law say about employee social media conduct?
You might think an off-colour Tweet or Facebook post isn’t reason enough to dismiss an employee.
But in the UK, employers should treat any offensive online activity like verbal misconduct at work. And that’s whether or not your employee made the post during work hours.
Imagine if your employee made a loud and offensive comment at work – in front of all your other staff or customers. Would you pull them aside for a talk? Or would you head straight down the disciplinary route?
You’d probably base your decision on how serious the comment was. And that’s exactly how you should respond if an employee makes an offensive comment online.
Remember, hate speech laws forbid people from expressing hatred due to certain characteristics, including race, disability, ethnicity, religion, gender, and sexual orientation. As hate speech on any of the nine protected characteristics could be viewed as harassment, punishments can range from a hefty fine to imprisonment.
But while that’s for the court to decide, it’s up to employers to consider what disciplinary action is appropriate. Here’s what you should bear in mind…
Think about who your employee works with
If an employee makes biased comments online, you’d be right to worry about how it affects their conduct.
For example, your employee could regularly work with people belonging to a minority group. And if you discover the employee has been offensive towards that group, you’d no longer have confidence they were respectful on the job.
Plus, it can create a toxic workplace environment. If word gets out that a male employee made sexist comments towards women, your female staff could feel anxious at work.
This means reduced confidence and broken trust. And if that’s the case, you might have no choice but to dismiss your employee as a result.
Think about your company’s reputation
Your staff reflect your brand and principles.
So when an offensive post blows up online, your company could suffer the result of bad press. And whether it’s a brand boycott or a viral dressing down, that could seriously affect your bottom line.
In this instance, it can be reasonable to dismiss a staff member to protect your reputation.
However, you need to have solid proof that your reputation is under threat. This could be an example of clients withdrawing contracts or customers claiming to shop elsewhere. Otherwise, you could risk an unfair dismissal claim for firing your employee without clear reason.
What if the social media post was from years ago?
If an offensive post resurfaces from several years ago, it can be harder to plan your next steps.
Because while the views might be unacceptable, there’s every chance your employee now thinks differently – especially if they were much younger when they made the post.
Instead of an instant disciplinary, it’s best to speak to your employee in private and ask them about the post. Asking your employee to remove the post could prevent any damage to your reputation.
If your employee regrets the post and removes it, you could consider this the end of the matter.
However, Acas advises employers to always take the seriousness of any offensive post into account. If the content seems extreme, you might still consider taking disciplinary action – regardless of how old the post is.
Monitoring social media posts
Checking staff social accounts means you can protect your reputation and prevent workplace tension.
But take it too far, and you could create an environment of fear. Frequent or covert monitoring can destroy any trust between you and your staff – and it could even result in a constructive dismissal claim.
Only check social media when you have a clear reason to – and be open about why you choose to do this. It’s important you make it clear to staff:
- Whether or not you monitor their social accounts – and how often.
- Why you choose to look at their social media.
- How you record any personal data in line with your GDPR policy.
Sharing this information with staff helps prevent any disputes down the line. And it may mean employees make their settings private or choose to be more careful about what they post – which makes life easier for everyone involved.
Be wary of unfair dismissal claims
News travels fast. So when an offensive post gains attention, it’s easy to panic and head straight down the disciplinary route – especially if your reputation hangs in the balance.
But dismissing staff due to social media posts can be risky.
As the line between free speech and hate speech remains complex, employees could claim for unfair dismissal. And if you don’t have a clear business reason behind your decision – or if you don’t follow a fair process – you could stand to lose.
So remember, dismissals should be a last resort. Instead of taking this step, a verbal or written warning could be enough to prevent it from happening again.
If you do dismiss your employee, you should follow a fair process in line with the Acas Code of Practice on disciplinary and grievance procedures. This protects your business if your employee takes the matter to court.
You might decide to dismiss your employee if their online activity has led to:
- Severe damage to your reputation.
- A breach of trust and lack of confidence.
- A hostile working environment.
Protect yourself with a social media policy
A huge 73% of businesses don’t have a social media policy. But without guidance on managing social media, staff remain unaware of the risks that come with posting harmful content online. And that means a PR disaster or a dispute in court is much more likely…
When creating a social media policy, remember to include:
- How employees are responsible for what they post.
- The consequences for posting any hate speech or illegal behaviour.
- Whether you monitor any social media activity.
If you’d like help creating a social media policy, get in touch. Our employment law experts create watertight policies to help you hold onto your well-earned reputation.
Call today on 0800 917 0771 to get started.
