The pen is mightier than the sword
Or rather, the keyboard is mightier than the sword to bring the phrase into the 21st Century.
No-one can be unaware of the racist comments being made on social media platforms about the England football players who missed penalties during the Euro 2020 final with Italy. No-one can be unaware of the behaviour of a loud and aggressive minority of individuals who caused havoc in and around Wembley on the day of this match.
Why should employers be concerned with this type of activity?
Let’s look at social media first. Andrew Bone proudly stated on his Twitter account that he was a Commercial Building Manager at Savills (a UK Estate agent). From the same account, he posted a explicitly racist tweet after the match.
Twitter blew up with comments about this and many of them were directed at his employer; some saying that they were taking their business away from them. Savills responded by saying that they were investigating the issue and that they were ‘committed to eliminating discrimination and encouraging diversity amongst our workforce’. This last statement drew examination into how diverse its board and leadership team is (and, spoiler alert, it isn’t!).
It should be said that the police are investigating the matter including making an arrest and that Savills has said that the employee is claiming his account was hacked but that he remains suspended while they carry out an investigation. Notwithstanding this, the damage has been done.
This is the more extreme end of how employees’ behaviour on social media can impact on an organisation and there are lots of tribunal claims that have been won or lost where individuals have been dismissed for what they have posted on social media. The legal position on an employee’s right to express opinions on their private social media account versus an employer’s right to not tolerate this is not always a straight forward one. So how can an organisation protect themselves?
The answer is a robust Social Media Policy coupled with clear communication of this policy along with education on how social media can impact on their working lives.
Andrew Bone was happy to link himself to his employer and many employers encourage their people to use social media to promote their organisation so a blanket ban on employees stating where they work is not always appropriate. And even if is this the approach you choose to take, colleagues are often friends with each other outside of work who interact on social media platforms and may make complaints to you about posts made so you won’t be immune from issues by taking this approach.
Having a clear policy stating what your expectations are around how your employees conduct themselves on social media will help to allow you to take appropriate action in the event they behave in a manner that could damage your organisation’s reputation. The policy alone isn’t enough, however. You also need to be able to demonstrate that you have highlighted the policy to your people and have educated them on the risks – the latter is particularly important if you encourage people to use social media to promote your business activity. It also goes without saying that equality, diversity and inclusion issues should also be addressed in a similar manner.
Some roles within organisations also have responsibility for managing an organisation’s social media and there have been cases where individuals have made faux pas without realising the consequences. If your organisation uses social media (and who doesn’t these days?), you might want to consider specific social media training for the relevant people to help protect against this.
You also need to consider how to protect access to your social media accounts in the event an individual becomes disgruntled with you – think about how to manage this access when an individual has submitted their resignation and always change the password access when someone leaves your organisation.
Social Media can be a powerful tool but it isn’t without its pitfalls. I have no idea whether Savills have a robust social media policy but, if they do, and, if their employee did post the tweet, they should be able to effect a fair dismissal.
Moving onto the aggressive and, in some cases, criminal behaviour, while an employer may want to take strong action including dismissal, it isn’t always easy to take such a stance. There have been tribunal cases, most notably Royal Mail dismissing two brothers who were captured on camera involved in an altercation during a football tournament in 2002. Royal Mail lost these cases and it was an expensive one.
It is possible to effect a fair dismissal for an individual’s conduct outside of the workplace but it will depend on what effect it has in relation to the suitability for the role and their relationship with customers and colleagues. Cases involving violence, such as hooliganism, are more likely to affect the employment relationship either because of:
the nature of the work (if an employee’s job is working with children or vulnerable people any form of violence is unlikely to be tolerated); or
damage to the employer’s reputation if there is the ability to link the individual to the employer and there is significant media attention
It’s also worth pointing out that if an individual is incarcerated because of their behaviour, a dismissal will not automatically be considered to be fair. An employer is expected to consider the length of any sentence and the impact of that on the business.
The events surrounding last week’s final raises a number of things for employers to consider. Whatever the topic, when considering the action to take each case has to be made on the specific circumstances of that case and any employer needs to carry out a thorough investigation and follow a fair process before deciding to dismiss.
If you need help developing or reviewing you approach to social media, equality, diversity & inclusion or if you need support in any other conduct issue, get in touch to see how 2020 HR can help.