An employee of Saville Estate Agents is suspended after (allegedly) posting racist tweets on his social media account. But, just like shaggy, he says…’It wasn’t me’! What are the risks for businesses?
On the one hand, if the employee has more than two years’ service he is protected from being unfairly dismissed and Savills should act according to the law before making any final decisions about his continued employment, otherwise he may have a claim of unfair dismissal. Conversely, the posts are discriminatory and could damage Saville’s reputation which could have serious repercussions.
All we know so far is that the employee has been suspended from work. Suspension is not always appropriate but can be justified where there is a potential threat to the business or other employees. Suspension comes before any disciplinary action and should not be imposed as a sanction or an assumption of guilt. Innocent until proven otherwise, this person is probably likely to have been suspended on full pay until an investigation has been carried out.
Any investigation will most certainly need to address his defence that his account was hacked. The legal test is that an employer must hold such investigation as is “reasonable in all the circumstances”, judged objectively by reference to the “band of reasonable responses”. The employer should come to its own conclusions based on a reasonable investigation. That could include finding out who else had access to the social media account, whether the account had ever been hacked before and the level and content of this person’s social media activity prior to the incident. Was he very vocal on social media about similar issues in the past? It might the case that investigation shows up a reasonable explanation or conversely, that the employee’s defence that his account was hacked is not substantiated. The employer should apply its own thought process and consider what a reasonable employer in those circumstances and in that business might have adopted. Only once this has been done, should the employer consider whether formal disciplinary action is necessary.
What about the fact that the tweets were on a personal social media platform? In the case of Game Retail Limited v. Laws the employer terminated the employee for making numerous offensive tweets on his personal Twitter account. The tribunal found that he had been unfairly dismissed but the Employment Appeal Tribunal overturned this decision, noting that the tribunal failed to take the public nature of the Twitter account into consideration and asking a new tribunal to balance the employees’ right to freedom of expression with the employer’s desire to remove or reduce reputational risk from its employees’ social media communications. In this case, despite the fact the employee wasn’t at work at the time the posts were made, given the high media profile of this case and the fact that it appeared on Saville’s own social media account via this employee gives rise to a serious risk of reputational damage. Saville’s have stated that they have clear zero tolerance policies on discriminatory behaviour and intend to act accordingly.
It remains to be seen what the outcome for this individual will be, both in terms of his employment and the police investigation, but even where guilt may appear to obvious there should always be a carefully considered action.
Contact our Employment Team if you need support or advice about dealing with investigations and disciplinary matters.