The incredible rise of social media in the last decade has caused difficulties in the workplace. The Employment Tribunal are seeing more matters brought before them concerning online discrimination and harassment, the question being whether the employer can be vicariously liable for posts online by its employees, and what actions employers can take against those employees.
Boris Johnson has condemned the racial abuse England players have received on social media following their defeat in the Euro 2020 final on Sunday, 11 July 2021. The Prime Minister said the England team “deserve to be lauded as heroes, not racially abused on social media”.
The England team have said they are “disgusted” after Bukayo Saka, Marcus Rashford and Jadon Sancho, who each missed their penalty in the shoot-out against Italy, were all subjected to racist abuse. Saka, who missed the decisive penalty, was abused on his Instagram account just minutes after the game had finished on Sunday night. The Metropolitan Police said it will be investigating the posts. In a tweet, the force said: “We are aware of several offensive and racist social media comments being directed towards footballers following the Euro 2020 final. This abuse is unacceptable, it will not be tolerated, and it will be investigated.”
What is the government going to do?
Oliver Dowden said: “I share the anger at appalling racist abuse of our heroic players. Social media companies need to up their game in addressing it and, if they fail to, our new Online Safety Bill will hold them to account with fines of up to 10% of global revenue.” The Online Safety Bill a draft of which was published this May, introduces a statutory duty on social media platforms to address harm, but it doesn’t define what that harm is.
There are also calls for social media accounts to be verified using ID, to stop individuals hiding behind anonymity.
Can an employee be dismissed for what they post on social media?
From a legal perspective, when it comes to social media use, misconduct is misconduct. If it states in the company handbook or contract of employment that if an employee is found to be making racist comments on social media and that amounts to gross misconduct, then that can be a fair reason for an employer to dismiss or discipline their employee. It is very much a matter of scale and the reason why the employer has decided to take the chosen action.
An employer will also be entitled to consider the reputational damage which any such posts cause to their business – if the employee’s social media account clearly shows them as being associated with the employer, then this would bolster any arguments the employer might have that the posts cause real damage to their reputation.
Therefore, yes, you can be dismissed for what you post on social media as a tribunal will likely find that dismissal is within the reasonable range of options available to the employer, however, this will depend on a case-by-case basis.
Can an employer be liable for what employee posts on social media?
If an employee discriminates against someone else, by law their employer could also be held responsible. This is known as ‘vicarious liability’.
Whether the individual and the employer are both held responsible depends on whether the discrimination is linked to the employee’s work. The law describes this relationship as ‘acting in the course of employment’. The discrimination could happen at work or outside the workplace, for example, at a work party or through social media that’s linked to work.
Employers will not be liable for any criminal actions made by the employees, but for civil actions, employers may be liable vicariously. This could include racist actions at work or on social media that is linked to work. Where it’s criminal actions, it’s unlikely that the employer will have financial consequences but there could still be reputational concerns to consider
Where the act of discrimination or harassment is somehow linked to work, the Tribunal decide that the employer is not responsible if they took all reasonable steps to try to prevent discrimination, harassment, and victimisation by staff. This could include having up-to-date and comprehensive social media and equality policies, conducting regular anti-discrimination or equal opportunities training and providing a clear process for employees, should they need to raise concerns. Employers should ensure their business has diversity and inclusion in the culture and that management and senior members of the workforce are modelling this to their teams.
How can employers prevent social media incidents from happening?
In short, employers should ensure that they make their expectations of their employees clear. This includes expectations regarding activities outside the workplace, making it clear that any damage to reputation will be dealt with accordingly.
If the action by the employee amounts to discrimination, for employers, the best way to defend discrimination or harassment claims is to make sure you can demonstrate that you have taken “all reasonable steps” to prevent such acts from occurring. In practical terms, this can be achieved by having a clear policy in place to deal with social media issues, providing training on the policy, and ensuring complaints are dealt with promptly and consistently.
If you wish to limit the number of claims regarding social media, it is advisable to have a social media policy that sets out the rules and expectations clearly to employees to ensure values of equality and diversity are maintained
Do you need more help with dealing with employee’s social media activity?
If you’re unsure how to respond to an employee’s online behaviour, at Thrive we are employment law and HR specialists and we can advise on the best course of action and guide you through the disciplinary process, if appropriate. We can also draft a robust social media policy, which will make your expectations of employees clear and be instrumental in successfully defending claims. As part of our HR retainer, you will have a full and comprehensive review of your handbooks and contracts to ensure they are protecting both you and your employees and are fully compliant with employment law.
Get in touch today to invest in your business and make your HR stress free. Email Jodie.email@example.com
Please note this blog is for reference purposes only and is only accurate at the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions at firstname.lastname@example.org