• For many of us, the summer of 2021 was dominated by the excitement of England’s impressive performance in Euro 2020. When the team narrowly missed out on victory in the final, the good feeling was quickly overshadowed by racist remarks on social media, targeting the three players who missed penalties.

    Social sites acted swiftly and highlighted offensive accounts. Various action has since also been taken, including a hate crime investigation by the police which has so far led to 11 arrests.

    Separately to the criminal investigation we have seen estate agent Savills suspending an employee after being made aware of comments on his Twitter account. Comedian Andrew Lawrence has also been dropped by his agent for racist tweets, and Nottingham Trent University has withdrawn an offer of a place to an applicant following racist Snapchat aimed at the England players.

    Many employees think that their personal social media accounts are just that; personal. They may believe that any activity on these accounts is no business of their employer and cannot have repercussions on their work relationship. However, this is not true. In fact, potentially there could be far reaching repercussions, including dismissal.

    What action can an employer take against an employee for possible discriminatory action on social media outside of the workplace?

    The key issue is whether the conduct in question relates to the employment relationship. The extent to which an employee’s activity on their personal social media affects the employment relationship will depend on the particular nature of the work or general considerations about damage to the employer’s reputation.

    Monitoring your employees’ social media and data protection

    Appropriate action should be weighed against an employee’s rights under the Human Rights Act 1998 and potential issues that could arise around monitoring. This includes whether such monitoring is in line with data protection legislation and obligations under the implied term of trust and confidence.

    These rights and duties can be balanced and, if handled properly and covered in appropriate policies, you may be able to monitor or view the social media activity of employees. You would need to ensure that you have fair, lawful and transparent processing of any personal data. If tweets, blogs or posts identify employees this is likely to amount to personal data. Be aware that social media posts may identify other employees (and therefore their personal data) as well as the original poster.

    The most appropriate lawful ground for monitoring or processing an employee’s personal data in this way is likely to be legitimate interests. However, this can be overridden by the interests or fundamental rights and freedoms of the employee (‘data subject’).

    For example, if the social media account is not public and there was not a reasonable expectation of that information being monitored or processed, the rights and freedoms of the data subject could override your legitimate interest.

    Further, if the tweets or posts being relied upon include special category data it can only be processed if certain specifically-listed exceptions apply. This might include the processing being necessary for carrying out your obligations and exercising specific rights in the field of employment.

    Having a clear legal ground for monitoring employee activity

    Before carrying out such monitoring, or relying upon and processing social media information, you must have a legal ground. You must also ensure that what you are doing is processed fairly. Any actions should be proportionate and necessary in the circumstances. This should also be reflected in your privacy notice and data protection policy.

    If, for example, your aim is to prevent racial harassment, this is likely to be a legitimate reason for monitoring social media activity. However, you would still need to consider the other matters outlined above.

    A further and possibly stronger argument for a legitimate reason is protecting the reputation of your business and the rest of the workforce. This includes minimising potential allegations of vicarious liability.

    For example, in the Savills case, the employee stated in his account bio that he worked at Savills. In doing so he arguably created a direct relationship between the company and whatever comments and views he expressed. It was therefore appropriate for Savills to take a zero-tolerance stance on any link between them and potential racial harassment.

    Follow a fair investigation and dismissal procedure

    Before making any decision to dismiss, an employer must follow a fair procedure that adheres to the Acas Code, as well as having a fair reason for any dismissal. This applies even if that reason is gross misconduct for racial harassment.

    Failure to do so means that an employee with over two years’ continuous service may bring a claim for unfair dismissal and is likely to succeed for failure to follow a fair procedure. They may also be awarded an uplift of up to 25% in any compensation given.

    It is therefore important that you take swift action if you become aware of an employee’s potentially discriminatory activity on social media. This should include suspension (if appropriate) and a full investigation.

    If the investigation shows that there is a case to answer, the employee should be invited to a formal disciplinary hearing. If on the evidence there is a reasonable belief that an employee was responsible for, for example, racist comments, the outcome may be dismissal for discriminatory conduct.

    Alternatively or additionally and depending upon the allegations and evidence, there may be a dismissal for some other substantial reason (SOSR). This will most likely be due to an irretrievable breakdown in trust and confidence between the employer and employee or due to damage to the company’s reputation.

    Each case will turn on its own facts and it will be important to review and consider each case carefully. With regards to social media, it is particularly important to focus on whether such acts could be considered ‘work-related’.

    Just because material comes to light that may not put your company in the best possible light, be careful not to take a disproportionate view of the damage or potential damage. Again, this should be considered carefully in light of the facts and information available.

    A tribunal will take into account the information and training that has been given to employees about corporate image and reputation and expectations with regards to the use of social media. If you have not taken any steps to make this clear, you are unlikely to be able to dismiss because of it.

    If you are considering dismissal, we would suggest taking legal advice before starting any formal processes.

    What can you do to minimise risk to your business?

    • Have clear policies on equality, diversity and inclusion and use of social media, making clear your expectations and what is acceptable and what is not. Ensure the policies are communicated to employees and that regular training takes place. Training should be kept current and reiterated at reasonable intervals. Just having a policy is not enough!
    • Foster a supportive and inclusive culture throughout your business and reflect this from the top down.
    • Conduct a data protection impact assessment and ensure you understand the legal parameters for employee monitoring.
    • Clearly state your legitimate aim for monitoring and why you consider this to be reasonable. Make employees aware of this. Reiterate this in appropriate places such as your employee privacy notice and data protection policy.
    • Ensure that it is known to all employees that acts of unlawful discrimination, including via their personal social media accounts where there is a link to the company or ability to carry out their role, may lead to dismissal. Make this clear in appropriate policies.

    How can we help?

    Brachers Employment team can assist in providing policies and procedures, training for management and undertaking data protection impact assessments. For further support, book a free 30-minute consultation with our Employment team today.

    This content is correct at time of publication

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    Take a look at our Employment & HR page for useful information, resources, guidance, details of our team and how we may be able to help you

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