Monday, January 19, 2015

Should Online Racists Be Sacked?

The BBC reports on the case of a Texas man who was sacked after a racial slur he used on Facebook came to the attention of his employer.

Somebody shared it to a social media site which encourages people to report racists in order to get them fired.

There are apparently, in the US at least, a number of people who run similar sites. The one which the man in Texas fell foul of actually encourages readers to contact the alleged racist's employers.  

Whilst the aim of highlighting and combating racism is no doubt laudable, there is perhaps something distasteful about reporting someone you do not know to their employer in the hope that they will lose their job as a result of their comments. Whilst inciting racial or religious hatred is unlawful in the UK, it is not against the law simply to have racist views - and who decides whether the views are actually racist?  

How would an Employment Tribunal in this country view a dismissal arising in such circumstances?

Conduct is one of the potentially fair reasons for dismissal so any case would turn on whether the Tribunal felt that dismissal fell within "the range of reasonable responses" open to the Employer.

The right to privacy will not normally assist the employee - the case law suggests that where the comments are made on publicly accessible social media they are to be treated as being made in public, although there may be scope for interesting arguments on this point based on the privacy settings in the individual case and whether the employee had a reasonable expectation that the comments would be private.

Other considerations would be:-

  • the content of the online posting - for example the language used and whether this amounts to a criminal offence;
  • whether the Employee can be identified from the comment as being employed by the Employer. A comment which might otherwise be a private matter could justify dismissal if it is likely to bring the Employer into disrepute.
  • whether the comment might be regarded as making the Employee unsuitable for their job. For example someone in public service like a Policeman or a teacher may be in more trouble than someone who does not have a customer facing role.
Employers are well advised to get professional assistance before deciding how to react in these circumstances and a properly conducted investigation and disciplinary hearing will always be essential.