Legal

Why employers should police out-of-work behaviour

3 Aug 2021 By Katie Maguire

The online racist bullying hurled at a trio of England players after their Euro finals defeat is another example of why firms need robust zero-tolerance policies, says Katie Maguire

Online racist bullies might well claim they’re entitled to say and do what they like in their own private lives, but where the abuser can publicly be linked to working at a company, it will put that organisation under huge pressure to act.  

I have 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, while outside of work, put the employer’s reputation at risk.

More recently we have seen estate agency Savills placed in such a position following the online racist abuse levelled at Marcus Rashford, Jadon Sancho and Bukayo Saka. One of its staff posted a racist tweet after the game. 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. 

Also, just a couple of weeks ago, a man was sacked from his job following video footage on social media of him and his mates accosting England’s chief medical officer.  

Both incidents should serve as a sharp warning to employees about their behaviour outside of work. 

For employers, I strongly advise them to review their policies to ensure they are adequately drafted to handle such situations. Importantly, employees should know what standard of behaviour is required from them, both in and outside of work.

Practical steps

  1. As a basic first step, all employers should be working hard to create a workplace culture that is free from discrimination and promote equality and inclusion through training. 

  2. Many companies will state they have a zero-tolerance policy to discrimination, but they need to ensure this is actually in their policies. It should be expressly stated that any personal social media posts that risk bringing the company into disrepute will be a disciplinary matter. 

  3. If a matter is brought to attention, act swiftly but not hastily. Suspension should only be deployed if you think an employee may hinder any investigation you conduct and/or pose a risk to the business. 

  4. The employee needs to be informed of the allegations against them that are being investigated. If following the conclusion of the investigation it is recommended the matter proceeds to a disciplinary hearing, in the invite letter to the hearing, the employee should be told that they have a statutory right to be accompanied to the meeting by a trade union representative or colleague. Also, they must be warned as to the possible sanctions they may face as a result of the hearing. 

The hearing is an opportunity for the employee to give their account and put forward any mitigation. Remember the employee will have a right of appeal to any sanction applied. 

Recent events have thrown into sharp focus the need for employers to have guidelines on employee behaviour, especially when posting content online. Make sure you are prepared by creating the right culture and having the correct policies in place.

Katie Maguire is an employment law partner at Devonshires

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