The Euro 2021 Final was highly anticipated amongst England fans. If you did not watch the game, England lost on penalties. Football did not come home, instead it went to Rome. Disappointingly, the backlash on social media from some individuals has focussed on the race of the three England players (since dubbed “The Three Lions”) who missed their penalties. One employee of Savills appears to have used a racial slur in relation to The Three Lions. He claims his account was hacked. Savills have suspended him and have since confirmed they are committed to eliminating discrimination and are carrying out a full investigation.
Regardless of whether the employee said this or not, employers should be ready to tackle any backlash from the public over comments made over social media. Whilst this is an extreme example, social media issues are a frequent concern for employers who are looking to keep a clean sheet and avoid hospital passes from employees.
What are the risks?
Tweets by employees can obviously put the reputation of employers into question and the desire to have an element of control over what employees do (and do not do) on social media. Employers can be vicariously liable for their employees if they have posted in the course of work. What is considered to be during their course of work is wider than you might initially believe. This can attract liability for defamation, harassment, intellectual property infringements and data protection breaches to name but a few.
How to respond?
The first step the employer should take is establishing whether this is a performance issue (can’t work) or a conduct issue (won’t work) depending on the nature of the offence. In other words, does the employee understand social media? Do not go straight to giving the employee the hairdryer treatment and instead park the bus and consider how to proceed. In the Savills case, it is clearly a matter of conduct however there are circumstances where it might not be so obvious. For example, a minor data protection breach and may require performance management instead of misconduct proceedings.
An employer should also be sure to follow their social media policy and correctly label the misconduct. In one case, an employer was found to have unfairly dismissed an employee who had categorised the employee’s behaviour as gross misconduct when their social media policy categorised social media offences as merely misconduct.
Once the matter has been identified as a misconduct issue, a suspension may be appropriate if there is a risk of continuing to have the employee in the workplace. Remember, suspending an employee should not be a knee jerk reaction. When dismissing, the employer should have a reasonable belief of guilt, reasonable grounds on which to base that belief and have carried out a reasonable investigation in order to come to that belief.
The following top tips will make it easier for employers to avoid scoring an own goal:
- Have a clear social media policy;
- Keep in mind the actual effect of the post (e.g. has the post had minimal views? How quickly was it removed?)
- Was there sufficient work-related content?
If you need any advice regarding social media policies and employment law, please get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
Duncan Milne, Solicitor
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