The papers are reporting that Northampton rugby player, Brett Sharman, is subject to a disciplinary enquiry from his club following a racist tweet about Mo Farah.
How should other employers react to social network content posted by their employees which is discriminatory and/or offensive and how they can protect their businesses against any negative impact of such use?
Advances in technology have generally been beneficial for employers, but developments in social media have been something of a double edged sword. While they can be an incredibly powerful marketing tool they also throw up particular challenges when it comes to regulating employee behaviour, particularly in relation to posts employees make on social media such as Twitter and Facebook.
In Brett Sharman's case, he made an offensive tweet about Mo Farah, which read "Good luck Mohammed running for P*ki. I mean Great Britain". The offensive message was quickly taken down and Brett Sharman has expressed "enormous regret" over the tweet.
His tweet is very likely to amount to racial harassment. Conduct can amount to racial harassment if it is related to a protected characteristic, such as race, which has the purpose or effect of either violating another's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for another person. Where employees are guilty of making similar tweets, be it connected to race as here, or any other protected characteristic such as sexual orientation, age or gender, there are clear grounds for taking disciplinary action.
Sharman's actions have also potentially brought his club's name into disrepute by its association with him and this offensive comment. While this case has generated a lot of publicity due to the personalities involved, employers should not automatically assume that comments made on-line by staff will bring the employer itself into disrepute. A proper investigation should consider whether there is any evidence that the employer's business has been so affected. If for example, comments have been made but then taken down almost immediately and they have not been seen by customers, or others then this may not be the case.
So, what action should an employer take if one of its employee's posts an offensive tweet or comment online?
Taking disciplinary action based on social media content
Where the post adversely impacts upon the employer, for example by bringing them into disrepute, an employer will need to consider if this is serious enough to warrant disciplinary action, including dismissal?
Organisations should have a policy which makes it clear that discrimination and harassment by employees against colleagues and others is strictly prohibited. Depending on the nature of the tweet and the exact wording of the policy disciplinary action could be taken on the basis of breach of such policy. In order to reflect the new technology it would be helpful for employers to ensue that their existing policies are drafted widely enough to cover any posts made by employees while they are away from the workplace.
The good news is that the old rules still apply to the new technology. Firstly, the employer has to identify a potentially fair reason for any potential dismissal; in this case, this may be gross misconduct. In other cases, the potentially fair reason for the dismissal could be "some other substantial reason". For example, where the employee has not breached an express contractual term, rule or policy but has clearly brought the employer into disrepute or potentially damaged its business.
Once a fair reason is established, the employer should consider whether it is reasonable to dismiss the employee for that reason in all the relevant circumstances?
Finally, it is vital to follow a fair disciplinary procedure in the normal way in such cases. The ACAS Code of Practice will apply to a dismissal for misconduct.
What should I do?
It goes without saying that it is not reasonable to dismiss somebody for misconduct if they did not understand (and could not reasonably be expected to understand) that what they were doing amounted to misconduct. Therefore, putting in place blogging and personal web content policies and guidelines so that staff are clear about what is and is not acceptable behaviour is strongly advised. Clarity is particularly important where the employer is trying to control activity which may take place away from the workplace.
Finally, if it becomes apparent that an employee has posted an offensive comment online, take action promptly to deal with the situation.
ACAS has recently published guidance on social networking for employers which is a helpful read.