Racism following the Euro 2020 final

England's men’s football team making it to the Euro 2020 final was tainted by the

racism exhibited by a minority, particularly online.

We have seen examples in the media of people being named and shamed for

posting online racist comments. This has even gone as far as finding a LinkedIn

profile and then contacting the relevant employer, calling for the employee in

question to lose their job. What if that employee works for you?

Should you act?

The way your business responds to issues like this sends a message about your

principles and culture. Demonstrating a firm approach to racism and discrimination

is not only the right thing to do morally but it can improve employee confidence in

the business. That helps the business by retaining employees and attracting good

people.

If the employee can be identified as working for you, this can damage the reputation

of your business and damage relationships with other employees, clients, and

customers. Setting an example will deter others from being racist online.

Can you discipline an employee for personal social media posts?

Even if this takes place outside of work, it could be regarded as misconduct,

potentially gross misconduct, and may also be a reputational issue for your

business. It may be appropriate to dismiss.

However, it is always important to follow a fair process: conduct a thorough

investigation of the incident, have evidence of the posts and their likely audience

and reach. Don't jump to conclusions. Give the employee a chance to plead,

explain and advance any mitigating factors.

Is dismissal appropriate?

Unless you have clear contractual obligations prohibiting such conduct, to fairly

dismiss an employee for activity outside work, it must affect or be capable of

affecting the employee’s work or your business.

The first link that ties the employee’s conduct to their job and your business, is your

business being identifiable from the posts. This could be where the employee’s

social media profile specifically states for whom they work or if the posts have been

reported to you by someone outside your business.

If the posts are available publicly, for example on Twitter, Facebook, or LinkedIn,

then colleagues, clients and customers can see them. That risks damaging your

business' reputation. The press may be interested.

You should also consider pressure from third parties, such as other employees,

clients, or suppliers for you to act.

Ensure that disciplinary action is reasonable, considering all of the circumstances.

Regardless of good intentions, if you do not follow a fair process when dismissing

an employee, you are likely to lose an unfair dismissal case. This would not only

incur the substantial legal costs involved in defending such a claim, but could leave

you liable for a basic award (calculated in the same way as redundancy payment),

up to a year’s salary, and an uplift of up to 25% to the year's salary for failure to

follow the Acas code of practice on discipline and grievance)

How would an Employment Tribunal assess the case?

Cases that consider the fairness of a dismissal owing to conduct outside work are

highly fact-sensitive and the 'range of reasonable responses' test would apply.

In order to pass this test, employers must take a proportionate view of all of the

circumstances, including, but not limited to:

• What did the posts contain?

• Did the employee commit a criminal offence by posting?

• Does the impact or potential impact on the organisation outweigh the impact on the employee in question?

• Have you made the business's stance on equality clear through contracts, policies and training?

• Are there aggravating or mitigating factors?

How can you protect the business?

Policy

Have a clear policy that says posting or sharing racist or otherwise discriminatory

posts on personal social media is gross misconduct. You must still respond

reasonably and maintain a consistent approach to such matters.

Training

When training staff, emphasis that your business does not tolerate racism,

discrimination, or harassment. Explain why and the potential sanction.

Remind

Remind employees of their responsibilities outside work and that their conduct can

affect your business and jeopardise their employment