A new type of vigilantism has sprung up in the United States which should give us pause for thought, what would we do here?
“Racists Getting Fired (and Getting Racists Fired!)” and “Yes You’re Racist” are just two of the Bloggers/ Tweeters who trawl the social media world looking for individuals who post racist comments online and once found, send those comments to the individual’s employer. This has led to many such individuals getting fired from their jobs.
This is online justice of a different kind but is it surprising? Twitter was established in 2006 and has seen a rise of tweets from 400,000 per quarter to 340 million tweets per day in 2012. With this exponential growth of comments in the public domain, it is not surprising that vigilantes spring up to raise awareness of shortfalls in behaviour.
So, to what extent can overtly racist comments from a private account result in the dismissal of an employee in the UK?
We have recently blogged on the case of Game Retail Ltd v Laws which was the first case to address the question of misconduct using Twitter. In this case, it was decided that a personal Twitter account was not private and that there was no requirement to show that the tweets had caused offence. However, this case can be contrasted with the case of Smith v Trafford Housing Trust where it was held that a personal Facebook wall had not acquired a sufficiently work-related context.
It is clear that employers can dismiss for comments made on Facebook pages, Blogs and Twitter. However, the employers who have well drafted equal opportunities and social media policies will stand a much better chance of a finding that it was a ‘fair dismissal’.
Where an employer becomes aware of racist comments from one of its employees then it may well invoke the label ‘racial harassment’ if any of its other employees feel that their dignity has been violated or that the comments have created an intimidating, hostile, degrading, humiliating or offensive environment for that worker. However, where the employer is notified of racist comments via the likes of a vigilante, this poses a slightly different problem as no one may have been racially harassed. To get around this, the employer may wish to include in their equal opportunities and/or social media policies that, offensive comments, on any social media (including from private accounts), in relation to any protected characteristic is likely to be a disciplinary matter and may lead to dismissal for gross misconduct.
Employers will have to judge for themselves whether any comments blogged or tweeted by their employees are offensive or merely expressing an opinion which is distasteful to others.
Other blogs of interest:
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