Employment Alert – Racist tweets outside work – Grounds for dismissal?

14 Jul 2021

Racist tweets outside work – Grounds for dismissal?

What’s happening?

An employee of a well known estate agents is being investigated by the company after he allegedly sent racist tweets directed at black footballers, Rashford, Saka and Sancho following England’s penalty defeat in the Euro 2020 final.

The employee has reportedly claimed that his Twitter account was hacked, and that he did not send the offensive tweets.

Will this well known estate agents be on firm ground to take the moral stance and discipline or dismiss this guy?

Why is this important?

Where the employee’s conduct brings the company into serious disrepute (as racist or other discriminatory conduct often will), disciplinary action is likely to be justified. Similarly, if it has an impact on the workplace or customer relationships, this can also bring the conduct within the scope of employment.

An employer will be in a stronger position if their disciplinary policy specifies that any acts of discrimination, whether inside or outside of work will be considered gross misconduct where they adversely impact upon the business in this way. If there is no such policy wording, or if the incident has no direct impact upon the company’s reputation, an employee could successfully claim unfair dismissal if they are dismissed.

In all cases, employers need to ensure they follow a fair process by carrying out a fair and reasonable investigation. This is highlighted in the estate agents example. An investigation should consider any defence raised by the employee (the estate agents employee has denied sending the tweets), before deciding upon appropriate action. Otherwise, again, dismissal could be unfair even if their actions do amount to gross misconduct.

What should you do?

  • Review and update your disciplinary policy to ensure that the examples of misconduct and gross misconduct include actions occurring outside of the workplace in appropriate circumstances
  • If an employee’s activities occurring outside of the workplace are a cause for concern, consider how (if at all) they may impact upon the business
  • Where the company’s reputation is at stake, act quickly to show customers and other staff that the employee’s actions are not acceptable to the company
  • Ensure issues are investigated fairly before any disciplinary action is taken. This is especially important for employees who have more than two years’ service, as they could bring an unfair dismissal claim if they are dismissed without a reasonable investigation being carried out
  • Ensure your staff are adequately trained on and aware of Equality, Diversity and Inclusion issues. Remind them that any discrimination will not be tolerated from any employee whether in or out of work

If you need more information please contact us on 0800 2800 421 or email Employment.Alert@trethowans.com to find out how we can help.

Author

Kathryn Evans

Partner