The recent online racist tweet abuse targeted at a trio of England players after their Euro 2020 final defeat brought into sharp focus the issue of whether an employee’s actions on social media can result in them being sacked.
While online racist bullies may claim they can say and do what they like in their own private lives, this isn’t necessarily the case. Where the online abuser can publicly be linked to working at a company, it will put that company under huge pressure to take disciplinary action against them.
This was the case when an employee from estate agency Savills levelled racist tweets at Marcus Rashford, Jadon Sancho and Bukayo Saka. Savills suspended the employee and launched a swift investigation into the tweet. The employee has subsequently claimed his account was hacked and the matter is being investigated by the police.
But can the employee be sacked as a result of posting a racist tweet online? The simple answer is yes, but it is of course not that simple.
‘Sack an employee on the spot – even for a racist tweet – then the employee has a very good chance of successfully bringing an unfair dismissal claim against you’
I’ve had clients who operate a zero-tolerance policy towards racism and discrimination and have dismissed employees for making racists posts on their personal social media accounts. I successfully defended a claim for unfair dismissal for one such client as the dismissal was found to be fair because the employee’s conduct, whilst outside of work, put the employer’s reputation at risk.
The legislation used by employers to dismiss employees in situations like this is Section 98(1) and (2) of the Employments Right Act 1996. This law states there are five potentially fair reasons for sacking an employee, one of which is conduct. Misconduct doesn’t have to be in the workplace. If an employee’s conduct outside of work can be linked back to their employer and potentially causes them reputational damage, then it can be potentially fair to dismiss the employee for that misconduct.
However, just because you think an employee has posted a racist tweet doesn’t mean that you can fire them on the spot. If you do, you are opening yourself up to expensive unfair dismissal claims. For a dismissal to be “fair” an employer must follow a fair procedure. After suspecting an employee has tweeted racist hate a disciplinary investigation should be carried out and the ACAS Code of Practice on Disciplinary and Grievance Procedures should be followed.
Firstly, the employee should be made aware of the allegations against them and that a disciplinary investigation has been launched. An investigation, which includes interviewing the employee and any witnesses and collating evidence, should be carried out by a designated investigating officer. They will decide if there is enough evidence for the matter to proceed to a disciplinary hearing.
In advance of the hearing the employee should be warned of the potential outcomes of the hearing and advised of their right to be accompanied by a colleague or trade union representative. At the hearing the employee should be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. Once all the evidence has been assessed by the chair of the hearing, the employee should be informed of the outcome/decision of the hearing in writing. In circumstances where the conduct is found to amount to gross misconduct, this is likely to result in the employees’ summary dismissal. In informing the employee of the outcome of the hearing the employee should also be given a right to appeal.
The importance of conducting a fair process and following the ACAS Code cannot be stressed enough. It may sound ridiculous, but if you sack an employee on the spot – even for a racist tweet – then the employee has a very good chance of successfully bringing an unfair dismissal claim against you. If you don’t follow a fair process in dismissing an employee, the dismissal may be deemed procedurally unfair. There are several examples of this happening in the past. In addition, if it is found that you did not follow the ACAS Code then up to a 25 per cent uplift in damages can be awarded.
Employees may argue that they did not know that their behaviour outside work could result in them losing their jobs. For this reason I always advise clients to make their employees aware of the standards of behaviour required from them, both in and outside of work. You may say you have a zero-tolerance policy toward discrimination, but are your employees aware of this? It should be expressly stated in your workplace policies that any personal social media posts that risk bringing your company into disrepute will be a disciplinary matter. It is also advisable for all employers to create a workplace culture that is free from discrimination and promotes equality, diversity and inclusion through training. This doesn’t need to cost the earth. The government’s Equality Advice & Support Service offers useful resources, as do other bodies such as ACAS and Citizens Advice.
While it is indeed legal and possible to sack an employee for a racist tweet, there are several steps you need to take before dismissing them. If you don’t follow the correct procedures then you could be left counting the costs.
Katie Maguire is an employment law partner at Devonshires