Racism within the workplace
Race and religion are protected characteristics under the Equality Act 2010. This prohibits discrimination based on race, which includes colour, nationality, and ethnic or national origins, as well as religion or belief.
Employees are protected from both direct and indirect discrimination, harassment, and victimisation. Employers are mandated to implement robust anti-discrimination policies and ensure a zero-tolerance stance towards any discriminatory behaviour.
Zero Tolerance policies
When witnessing or being informed about racist remarks or behaviours at work, employers should intervene swiftly and ensure a zero-tolerance stance towards any discriminatory behaviour. Regular communication and acting upon these zero-tolerance policies ensures all employees understand the importance of these policies and the consequences of violating them.
Effective training, prompt handling of complaints, and supportive measures are crucial to fostering a safe and inclusive work environment. Employers must not only endorse these policies but also lead by example. Employer’s actions significantly shape the organisation’s culture and reinforce the seriousness of these policies. In periods of unrest such as what the UK are facing now, it is important to reiterate that the organisation stands against racism and will not tolerate any abuse or violence, especially of a racist or anti-religious nature.
The situation can, however, become a little more complicated when the actions take place outside of the working environment.
The impact of social media
A large proportion of the riots have stemmed from the spread of inaccuracies and misinformation on social media platforms. To reflect on this within an organisation, it is important to remind employees what is regarded an appropriate use of social media in your company. Employers should have a clear and robust social media policy in the staff handbook to ensure all employees are aware of the boundaries and potential risks of using social media.
Can an employee be dismissed for what they post on social media?
From a legal perspective, when it comes to social media use, misconduct is misconduct. If it states in the company handbook or contract of employment that if an employee is found to be making racist comments on social media and that amounts to gross misconduct, then that can be a fair reason for an employer to dismiss or discipline their employee. It is very much a matter of scale and the reason why the employer has decided to take the chosen action.
An employer will also be entitled to consider the reputational damage which any such posts cause to their business – if the employee’s social media account clearly shows them as being associated with the employer, then this would bolster any arguments the employer might have that the posts cause real damage to their reputation.
Therefore, yes, employees can be fairly dismissed for what they post on social media, but it will be viewed on a case-by-case basis. A clear social media policy, linked to the employer’s disciplinary, will be helpful should this arise.
Can an employer be liable for what employee posts on social media?
If an employee discriminates against someone else, by law their employer could also be held responsible. This is known as ‘vicarious liability’.
Whether the individual and the employer are both held responsible depends on whether the discrimination is linked to the employee’s work. The law describes this relationship as ‘acting in the course of employment’. The discrimination could happen at work or outside the workplace, for example, at a work party or through social media that is linked to work.
Employers will not be liable for any criminal actions made by the employees, but for civil actions, employers may be liable vicariously. This could include racist actions at work or on social media that is linked to work.
Where the act of discrimination or harassment is somehow linked to work, the Tribunal decide that the employer is not responsible if they took all reasonable steps to try to prevent discrimination, harassment, and victimisation by staff. This could include having up-to-date and comprehensive social media and equality policies, conducting regular anti-discrimination or equal opportunities training and providing a clear process for employees, should they need to raise concerns. Employers should ensure their business has diversity and inclusion in the culture and that management and senior members of the workforce are modelling this to their teams.
If the employee is acting of their own volition, outside of their work life, and with no discernible link to their role, the risk of a finding of vicarious liability reduces significantly.
How can employers prevent social media incidents from happening?
In short, employers should ensure that they make their expectations of their employees clear. This includes expectations regarding activities outside the workplace, making it clear that any damage to reputation will be dealt with accordingly.
If the action by the employee amounts to discrimination, the best way for employers to defend discrimination or harassment claims is to make sure they can demonstrate that they have taken “all reasonable steps” to prevent such acts from occurring. In practical terms, this can be achieved by having a clear policy in place to deal with social media issues, providing training on the policy, and ensuring complaints are dealt with promptly and consistently.
If they wish to limit the number of claims regarding social media, it is advisable to have a social media policy that sets out the rules and expectations clearly to employees to ensure values of equality and diversity are maintained.
Training
A way to ensure all employees understand what behaviour is acceptable inside and outside of an organisation is through up to date training. In light of the recent unrest we recommended employers provide their teams with training of the below topics:
- Unacceptable behaviour
- Discrimination and inclusive leadership
- Social media and the link to work
Please reach out to the Outsourced HR and Employment Law Support team here at Thrive via enquiries@thrivelaw.co.uk for more advice on anti-discrimination policies.
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Disclaimer
Please note this blog is for reference purposes only and is only accurate at which the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific Legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any actions. Please contact us if you have any questions on enquiries@thrivelaw.co.uk.
