Taking disciplinary action against an employee for comments made on a personal social media accountDavid Morgan
So, football didn’t quite make it home on Sunday night after stalling on the home straight, much to the disappointment of any England fan. As is often said of England, it is the hope that gets you in the end, but it was a commendable, history-making effort by a young, talented and thoroughly likeable group of footballers, and a group that may very well go one better in tournaments to come.
Sadly though, it was soon reported that following the penalty shoot-out defeat at the hands (or more precisely, feet) of Italy, some so called ‘fans’ took to social media to racially abuse the England players who had missed their penalties in the shoot-out.
If you are an employer and one of the offending individuals was one of your employees you would no doubt be appalled and, if you are identifiable as that individual’s employer, the potential damage to your reputation as a result of that connection is considerable. This raises the question – can an employer take disciplinary action against an employee for comments made outside of working hours and on a personal social media account?
In one particular case the offending individual’s employer was identifiable from social media accounts linked to the social media account that had posted the racist comments, and that employer has suspended the employee pending a disciplinary investigation. The same happened when the abhorrent harassment of the government’s chief medical adviser, Chris Whitty, was shared on social media a couple of weeks ago, with that employee ultimately being dismissed by his employer.
Whether disciplinary action is appropriate will always depend on the particular facts and circumstances of each incident but, in short, yes – it may be appropriate to take disciplinary action against an employee who has made offensive comments on social media, even if it was done outside of work hours and from a personal account.
Factors to take into consideration when deciding if disciplinary action is appropriate in such circumstances, and ultimately whether a dismissal might be a fair outcome under employment law, are:
- whether the employer has a social-media policy, and what that says about an employee’s use of social media
- the nature and seriousness of the alleged misuse
- actual or potential damage done to customer relationships or the reputation of the employer, and the impact of the employee’s conduct on the employer’s business
- any previous warnings for similar misconduct in the past
- the reasonableness of the employer’s disapproval of the employee’s behaviour
- the employee’s position and role
- whether the name of the employer or names of customers or colleagues are mentioned in the post, the public account details, or linked identifiable accounts
If an employer becomes aware of social media posts by an employee that it considers could warrant disciplinary action, then it is just as important that a full, fair and proper disciplinary investigation and procedure is undertaken as it would be for any other incident of misconduct that may occur in the workplace, in order to protect the employer as far as possible from claims for unfair dismissal in the event that an employee is dismissed at the conclusion of those proceedings.
If you would like to speak to one of our expert employment law solicitors in relation to the matters raised in this article, please get in touch on 01782 262031