Footballer abuse should spur employers to review social media policies

Three black England players in particular – Marcus Rashford, Jadon Sancho and Bukayo Saka – were targeted by racist comments on social media after their failure to score in the final’s decisive penalty shoot-out. The abuse prompted a wave of support for the players from other members of the public and prominent figures in society, with some calling for employers to take specific action against perpetrators. In at least one case, one employer confirmed that it was investigating, and had suspended, an employee allegedly responsible for one abusive comment.

Lucy Townley of Pinsent Masons, the law firm behind Out-Law, said the unsavoury aftermath to Sunday’s match raised the question of when an employee’s social media misuse should lead to their dismissal.

“Social media policies and disciplinary policies should make it clear what employees are allowed to do, what will be considered misconduct and what actions employers will take if they deem employees to have breached the policy,” Townley said. “In many cases these policies will need updating to reflect new technology and social media platforms.”

“Social media policies should make it clear what will be considered misconduct. This will clearly include: the posting of offensive comments – particularly, in UK terms, those which breach the Equality Act 2010; sharing confidential information about an employer or its business; posting derogatory comments about the employer or colleagues; bullying or harassing behaviour, and posting any comments which may damage the employer’s reputation,” Townley said.

When considering the action to take against employees, the starting point will always be for employers to consider whether the employee’s action breaches the company policies.

“There is then a need to consider whether the employee knew they were breaching a policy,” Townley said. “If there isn’t a clear policy about what employees are or are not allowed to do and employees have not been properly notified about the policy, employers will have to take this into account when deciding how to discipline them.”

Townley said that, when conducting investigations and engaging in disciplinary proceedings, it is vital that employers follow the relevant company policies and adhere to investigation and disciplinary procedures.

Employers will also need to consider when the comment was posted, although there are examples of prominent individuals being sanctioned when their historic posts have come to light, as well as where the comment was posted, for example on their own profile page, on a comment board, under someone else’s post, or in a private message, Townley said. Also likely to be relevant is whether employees’ personal accounts reference who they work for, the ease with which those accounts can be linked with the identify of their employer, and whether the comments harm the organisation’s reputation, she said. The employer may also need to assess whether claims of account hacking can be proven, or whether there are special extenuating circumstances that caused the employee to act out of their usual character, she said.

“Public relations and public interest matters are increasingly the source of social media dismissals,” Townley said. “However, employers need to carefully investigate all allegations and consider the appropriate sanction in each individual circumstance to ensure that a fair balance is struck.”