Amanda Chadwick tackles the thorny issue of what happens when a staff member’s personal beliefs can reflect badly on a company’s reputation
A client of ours recently received a complaint from a staff member who told her that a fellow employee had attended an extremist political protest and posted this on social media. While this person has not previously displayed any racist behaviour at work, the client wants to know if they can dismiss them for attending this rally.
As we explained, this is a challenging situation and one that should be handled with care. Under the Equality Act 2010, individuals have a ‘day one’ right to claim unfair dismissal due to discrimination if their dismissal is found to relate to their political opinions. However, if these opinions are considered unlawful or in opposition to workplace rules there are steps that can be taken.
So what should you – or a client – do if faced with a similar situation? Prior to taking any action you should acknowledge the concerns of the employee who has brought this situation to light, before proceeding to conduct a full investigation into the matter. Once all available evidence has been obtained you should consult your existing workplace policies to determine the appropriate course of action.
Many businesses have a social media policy that outlines how employees are permitted to behave on social media. These policies typically forbid the sharing of any illegal, offensive or politically sensitive material online. If you have such a policy in place, then disciplinary action may be taken against the employee for their conduct. Depending on the findings of your investigation this can range from a written warning to a dismissal for gross misconduct for breach of workplace rules.
Given the nature of this situation it may be that the actions of the employee have brought the company into disrepute. This tends to be more applicable if the employee holds a senior position; however, it can still apply to those in lesser roles. If this is the case it is possible to dismiss the employee for some other substantial reason (SOSR). To do this you would need to present examples of how this has negatively impacted the business (e.g. loss of profits, negative media coverage) should the employee claim unfair dismissal at an employment tribunal.
If you choose to dismiss the employee, then there is a risk that they could claim political belief discrimination. There is no qualifying period for making this claim, meaning employees can do so regardless of their length of service.
However, the Equality Act 2010 states in order to make a successful claim the belief in question must be ‘worthy of respect in a democratic society’. This means any belief that is racist, sexist or homophobic in nature is unlikely to be supported. It will also help your case if they can point to any discontent that has been created among the workforce as a result of the employee’s behaviour.
Ultimately, you have the right to discipline staff who post offensive content on social media. While you may prefer to give first-time offenders a final warning, you should consider how the nature of the content could warrant a dismissal when it causes significant harm to your businesses reputation or unrest among the wider workforce.
• Amanda Chadwick is an employment law and health & safety presenter at Peninsula Business Services
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