Out-Law / Your Daily Need-To-Know

Kate Dodd tells HRNews about how employees’ ‘private’ online messages may create a workplace issue

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    If one of your employees racially abuses someone on social media how should you deal with it? Is it a private matter? How do you decide?

    Racial abuse on social media is once again back in the news following Sunday’s Grand Prix which Lewis Hamilton won in controversial fashion. As the BBC reported, Hamilton received a 10-second penalty after a collision with title rival Max Verstappen during the first lap of the race, which led to the Dutchman crashing out. The abuse towards Hamilton which followed was mainly on Facebook and Twitter and led to Culture Secretary Oliver Dowden speaking about the government's Online Safety Bill, which was announced in the Queen's Speech in May, which he says ‘will make social media firms deal with abuse’. That’s for the future so meanwhile what, if anything, should employers be doing to deter this sort of behaviour, and what action should they take if it appears that one of their own employees is joining in? 

    This is a question that we were looking at just a few days ago following England’s defeat to Italy after three of England’s black players missed their penalties and were abused online afterwards. In her Outlaw article: ‘Footballer abuse should spur employers to review social media policies’ Lucy Townley highlights the need to update policies to reflect new technology and social media platforms. The two key points she makes when taking disciplinary action are: investigate thoroughly and follow your company policies to the letter.

    Of course context is everything, and these cases turn on their own facts, but what we often hear from employees who are ‘called out’, either by colleagues or members of the public, is that these are their own private views and opinions which, when posted on social media, are an exercising of their right to free speech. So, are they right or does it spill into the workplace? It’s a question I put to Kate Dodd who joined me by video-link to discuss it:

    Kate Dodd: “Yes, absolutely it spills into the workplace, and it always has, to be honest. Many, many years ago, I don't want to tell my age here, but it has been decades that we've been talking to clients about people's behaviour outside the workplace and, of course, since the advent of social media it's made it even more immediate. The big issue, of course, is that social media companies want your data so they will ask you to do things like tell you who their employer is and, you know, you might say, I'm Joe Bloggs and I work for Smiths & Co, or whoever it might be, and then you've got a bit of a problem if you then start to put things on social media that are unacceptable in the eyes of your colleagues, in the eyes of your customers, and you are associated with your employer. So, that is that's one side of it that is something employees have to tackle. The biggest issue, of course, there is the fact that it damages the employer’s reputation and we have seen the backlash from the abuse of the English football team, the fact that employers have been very much named on social media and there has been immediate cancellation of contracts etcetera before internal investigations could even begin. I have to say, I did feel very sorry for the HR staff when I was looking at those tweets and comments thinking, gosh, this is a business that is facing the court of public opinion before they've even got up on a Monday morning, come into work, to understand what they're facing.”

    Joe Glavina: “So what can HR do to help on this, Kate?”

    Kate Dodd: “I think it is about education, I think it's making it clear to people that they should not be expressing views on social media that they would not want to express in the workplace because it does have an impact on somebody and whether you link yourself to your employer or not, of course, that is something I think that most people would be ill advised to do unless you have an account for work purposes. I think that employers should be talking to their staff and making it clear and maybe reassuring their social media policies to say, if you're posting things that are seen to generate hate, or they could be seen as discriminatory, or could be seen as harassment, then that will have an impact on you in the workplace even if it’s a Sunday night and you're watching football when you're posting it. It will have an impact on you in your workplace because, of course, it's not just members of the public who might say, look, there's a comment by Kate Dodd and I'm offended by that and I'm going to speak to Pinsent Masons about it. It could be one of my colleagues and it’s much more likely that I'm going to be connected to one of my colleagues who might see that and think, gosh, I don't want to work with Kate Dodd anymore if she has got those opinions. For you, as an employer, of course, that has to be something that you would look at in the workplace, you cannot simply wash your hands of it and say, well, no, don't worry, that was on a Sunday night on Kate Dodd’s own Facebook account, it’s nothing to do with us because, of course, that does have an effect on people in the workplace.”

    Joe Glavina: “I guess, just as with any other form of misconduct, it’s essential to carry out a fair investigation?”

    Kate Dodd: “Yes absolutely. It was funny actually seeing the calls for the instant dismissal of somebody who had been posting stuff on Twitter. Of course, if their employee had gone ahead with that instant dismissal, they would then have a problem in the tribunal. Interesting, of course, as well as the number of people who claim they've been hacked – oh no, that wasn't me that my account had been hacked. You know, these people with very low numbers of followers, no reason to hack them, but, of course, that is something that the employer would have to look into and investigate and to decide, on the balance of probabilities, is that person likely to have been hacked and, if not, what impact does that have on their ability to do their job, on their employer’s dignity at work policy, etcetera. So, absolutely, even more than it used to be, I think it's a real indication, this new kind of defensive of ‘I've been hacked’. It shows how important a proper investigation is because if you knee-jerk react and you dismiss somebody without that full investigation then even if you're likely ultimately to have been able to successfully defend that case, you've got a problem there of course, because the procedure you followed is unfair.”

    The article we mentioned earlier by Lucy Townley is called ‘Footballer abuse should spur employers to review social media policies’. You’ll find it on the Outlaw website along with all the latest developments.