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18 Jun 2021

Historical offensive tweets: considerations for employers

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The England and Wales Cricket Board pledged to take 'relevant and appropriate action' after historical offensive tweets from England players emerged. Not only did this result in an impressive performance on the pitch for test debutant Ollie Robinson being overshadowed by his past social media activities but it also placed the ECB in a very difficult position in relation to what action, if any, it should take in relation to Ollie Robinson and any other current England players who may have offensive content on their social media history.

This should serve as a cautionary tale for employers over the risks of past or present offensive social media posts by employees, which can potentially lead to employers being held liable for their employees’ actions as well as serious reputational damage and adverse publicity. 

How can employers mitigate the risks of social media?

Employers have a duty of care towards employees and can be held liable for discrimination, harassment or victimisation committed by an employee in the 'course of employment', which can extend to employee actions outside the workplace.  There is a defence available if an employer can show that it had taken 'all reasonable steps' to prevent the employee's discriminatory behaviour or any other offensive act of that description.  In addition, having clear policies and procedures in place in relation to social media activity will leave fewer ‘grey areas’ should offensive content on an employee’s social media profile come to light, it can also reduce the risk of such content arising in the first place.

What steps should employers take?

  • The first key step for any employer is a pre-emptive one; to ensure they have a robust and effective social media and internet policy in place. The policy should clearly set out what is and what is not deemed acceptable and provide guidelines for responsible use of social media. For example, this may include a requirement for an employee to make it clear in a social media posting or in their profile that they are speaking on their own behalf and their views are their own (i.e. entirely unrelated to their employer) but it can also remind employees what is expected of them when using social media.
  • Employers should consider how the social media and internet policy interacts with other policies the business has in place, such as disciplinary and equal opportunity policies, and include cross-references where appropriate.
  • Employees should be made aware of the relevant policies, which should be reviewed and updated regularly, and enforced consistently.
  • Although a robust internet and social media policy will minimise the risks associated with employees’ internet and social media use, employers should consider going a step further by providing training outlining what is and is not acceptable use both inside and outside the workplace.
  • Employers should consider to what extent the business wishes to monitor, intercept and review employees’ social media use on its IT systems. Take into account that any monitoring should be proportionate and employees should be provided with details regarding the business purpose of the monitoring and how it will be carried out.

Is the misconduct serious enough to warrant disciplinary action?

The social media and internet policy should clearly set out the potential consequences of an employee breaching the policy (i.e. disciplinary action may be taken up to and including dismissal). Examples of misconduct on social media that provide grounds for taking disciplinary action are:

  • Online bullying and harassment;
  • Posting disparaging comments about the employer, other employees or clients; and
  • Expressing views which are offensive or inappropriate, particularly if related to a protected characteristic, such as race, sex, disability, age or gender reassignment.

In some circumstances, dismissal might be appropriate, in particular where controversial comments are re-tweeted, shared, re-posted or ‘go viral’ and reach a wide audience. As with other dismissal cases, an employer’s decision to dismiss and the process in reaching that decision must fall within the band of reasonable responses open to the reasonable employer on the facts of a particular case. An employer may be able to establish that expression of views that are incompatible with the employer’s equal opportunities policy undermines the trust and confidence in that employee.

Where an employee has named their employer, or the employer is readily identifiable from the posts, then this may further legitimise any disciplinary action up to and including dismissal. An employer will typically need to demonstrate lost business, customer complaints, or press negativity to rely upon disciplinary action being based on reputational damage and bringing the company into disrepute.

Tribunals will take into account many factors when dealing with conduct issues relating to social media, including:

  • whether the comments were made on a social media account used for personal, rather than work-related, purposes;
  • whether the employer has an internet or social media policy prohibiting such behaviour;
  • the nature and seriousness of the comments made by an employee;
  • the impact of the employee's conduct on the employer's business;
  • whether the conduct occurred during, or out of, working hours; and
  • whether there are any mitigating circumstances, such as whether the employee apologised, how quickly the offensive comment(s) were removed and whether the employee had a good record of behaviour.

The historical nature of misconduct

The passage of time will need to be considered by employers when deciding what, if any, disciplinary action should be taken in respect of historical offensive social media content. Simply because content is posted prior to an individual commencing employment with the employer does not mean than an employer cannot take disciplinary action in relation to it. That said, the passage of time, and whether the relevant social media content was posted since the employee commenced employment with the employer, are likely to be relevant factors in determining whether a dismissal fell within the band of reasonable responses.

With employees having an ever increasing social media history, and with more and more of the current workforce having had social media accounts from a young age, the issues currently facing the ECB will only become more common for employers. To reduce the risk of having matters such as this disrupting the running of a business, or damaging its reputation, employers should make sure that they have reviewed their relevant policies to ensure they are robust enough to deal with this type of challenge. Failure to do so could leave you having to carry out disciplinary action when you would rather be focussing on developing a team to win the Ashes back this winter.

If you have any queries relating to topics covered in this alert please contact Richard Freedman, Aaron Pooni or usual Stephenson Harwood contact.

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Richard Freedman

Richard Freedman
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