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It has become a growing trend for other social media users to ‘out’ people who have posted racist comments online by tracking down the details of the poster’s employer (usually through LinkedIn profiles) and then contacting them to draw the comments to their attention with a view to the poster losing their job. Employers then find themselves facing the question of whether they can take action against their employees for something that occurs outside of work.

Employers may look to start disciplinary processes against the employee in question. As part of that process, they may wish to consider whether it is appropriate to suspend the employee.

Disciplinary proceedings might be started for a number of reasons:

  1. Misconduct – an employer can discipline an employee for conduct outside work if it affects (or is capable of affecting) the employee’s work or the employer. The employer might also have a clear policy in place that sets out that any discriminatory posts made on an employee’s social media will be treated as misconduct.
  2. Bringing the business into disrepute – if the employee identifies their employer on their social media account or if the post is public and open to their colleagues, clients or customers, there would be a risk to the business’ reputation. Employers may discipline an employee as a result of this. Where the post has been brought to the employer’s attention by a member of the public this would tend to indicate that there is a connection between the person posting the comments and the business.

Avoid unfair dismissal

Employers who do decide to take action should ensure that they follow a fair process in accordance with any internal disciplinary processes they have in place, together with the ACAS Code of Practice on disciplinary and grievance procedures. This can often seem counter-intuitive and lead to further backlash from the online community who may be frustrated that the employee is not sacked immediately. Moving straight to dismissal, however, without giving the employee the chance to put across their case runs the risk of an unfair dismissal claim where the employee in question has 2 years or more continuous service.

At the outset, employers should conduct a thorough investigation. Screenshots of the relevant posts should be obtained before the employee has a chance to delete them. Employers should also seek to establish whether the employee is identifiable from the relevant post and whether they hold themselves out to be associated with the business on their social media account. The employee should then be invited to an investigation meeting so that they have a chance to put across their version of events and any mitigating factors.

Employers need to ensure that any disciplinary action that is ultimately taken is reasonable in the circumstances. If the employer does decide to dismiss the employee they will need to be able to demonstrate that the decision falls within the range of reasonable responses. To make this determination, an employment tribunal would consider:

  • the content of the post (how serious/offensive was it?);
  • what has the impact on the employer been (has there been a large public outcry?);
  • has the employer previously made clear that discriminatory behaviour both inside and outside of work will not be tolerated (what do the employer’s policies say? What training has been given to the employee?)
  • and whether there are any mitigating factors involved.

Employers can make matters much easier to deal with when they arise by having a policy on social media use in place that sets out clear expectations around professional and personal use of social media as well as the implications if they fail to comply with any such policy. It should be made clear to employees that discriminatory behaviour of any kind both inside work and outside of work (where it affects the employee’s work or the business itself) will not be tolerated and could lead to disciplinary action, up to and including dismissal, being taken.

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