How an employer responds to derogatory comments made by its employees speaks volumes about its ethos and culture, but what can and should an employer do to prevent its employees making such comments online in their free time?
The UEFA European Football Championship was commended for finally bringing some positivity and hope following what has been a particularly difficult 18 months for many. However, the achievements of the home nations’ teams and, in particular, England’s finalists, were overshadowed by racist online comments directed at the three young and brave penalty takers Bukayo Saka, Marcus Rashford and Jadon Sancho after the final on 11 July 2021. Despite such comments being met with widespread criticism and disgust, history sadly repeated itself when further online racist abuse was targeted at Lewis Hamilton following his British Grand Prix victory merely a week later.
Horrifyingly, people posting discriminatory comments online isn’t anything new.
Currently, anyone can create an account on social media without having to verify their identity, making it particularly easy for people to post derogatory and discriminatory comments online without repercussion. We have seen recent petitions plead for verified ID to be a requirement for opening a social media account. However, whilst the Department for Digital, Culture, Media and Sport confirmed that a new Online Safety Bill will be ready this year, it also confirmed that “anonymity underpins people’s fundamental right to express themselves and access information online in a liberal democracy. Introducing a new legal requirement for user verification on social media would unfairly restrict this right and force vulnerable users to disclose their identity“. As such, anonymity on social media is not something we will likely see disappear anytime soon and thus, frustratingly, recent history suggests that people will continue to post discriminatory comments online.
There are numerous reasons why it is important for employers to take steps to address racism and other discriminatory behaviour. Other than the obvious moral reasons (it’s the right thing to do!), there are significant commercial benefits to having a clear zero-tolerance approach to discrimination. Companies are becoming increasingly conscious of the people that they are prepared to work with, whether this be clients, partner organisations or suppliers. Admirably, we are seeing more and more businesses considering factors such as equality when choosing who they do business with. Similarly, it is well publicised that equality, diversity and inclusion are now key considerations for many employees and job applicants, as they recognise the value of working for an organisation whose principals align with their own. It therefore follows that if an organisation’s current employees are seen to be posting discriminatory comments on social media without redress, the impact on the company’s current workforce, their prospects for future recruitment and, indeed, their reputation could be devastating.
Inevitably, an employer isn’t going to have the resources to continuously monitor its employee’s social media accounts. Even if it did, not only would this type of approach sit uncomfortably with employees, but it would also potentially fall foul of data protection laws and an employee’s right to privacy. So what action can an employer feasibly take to tackle the issue?
As is normally the case, prevention is better than cure. Employers may wish to consider the following measures to ensure that their values are clearly communicated to their workforce:
Even with the best of intentions, steps that an employer takes to tackle racism and other discrimination online may not always be effective. In reality, it’s most likely that an employer will be informed of derogatory comments online by another employee, as opposed to finding out about them directly. That then prompts the question, how far can an employer actually go to discipline an employee for their discriminatory comments on their own social media, particularly when such comments are made outside of working time?
Unfortunately, the answer is ‘it depends‘. Crucially, in the absence of a contractual term prohibiting the employee from posting discriminatory comments on social media, it will be necessary for the employer to demonstrate that the employee’s comments has the ability to affect the employer or the employee’s job. It will be more difficult to justify taking disciplinary action where the conduct cannot be linked to the employee’s job or the employer. The most obvious way to show a link between the employee’s conduct and their job will be to investigate whether the employer is identifiable from the posts or the employee’s social media account as a whole. This can be a simple as the employee naming their employer on their social media page, including a photo of them in their work uniform, which is easily recognisable, or the employee’s social media being linked to their Linked-In page on which their employer is named. Pressure from third parties, such as clients or employees, for the organisation to take action will also be relevant when investigating these matters.
If an employer does decide to formally investigate an allegations that an employee has posted discriminatory content on social media, it must, of course, follow a fair process. Upon conclusion of that investigation, should the employer choose to take formal disciplinary action, they must be confident that such action is reasonable given: the content of the post; the (potential) impact the post has had on the employer; whether the employer’s policies on equality, diversity and inclusion have been made clear to the employee and whether the employee has been afforded appropriate and up-to-date training by the employer on equality, diversity and inclusion.
We all have an important role to play in ensuring that those people who post racist and discriminatory comments online are held accountable. This includes employers. Whilst there are legal hurdles in place when tackling online abuse and discrimination, employers who take time to revise and communicate their policies, clearly communicate a zero-tolerance approach to discrimination across their entire workforce and to their customers and partners, and then take fair and consistent approach to addressing instances of online abuse and discrimination, will benefit from the advantages of having a more diverse organisation.