Acas recently published new guidance on religion and belief to help employers prevent discrimination on these grounds in the workplace. To assist employers further, we’ve produced another series of “myth busters” to help separate fact from fiction in this area, all of which have been published on our website over the last few weeks. Of course, if you’re an employer and would like to discuss any of the issues touched on in these posts, please contact one of our HR consultants in confidence and without delay for some initial advice free of charge and without obligation.
Away from work, I can say what I want regarding religion or belief on social media – it’s my profile and my page.
It is always advisable to make the workplace as inclusive as possible and ensure that everyone is treated with respect and dignity. Whilst employers needn’t go as far as imposing restrictions on conversations relating to religion or belief, it is important to protect the rights and feelings of employees, and its reputation in the process.
An employee who posts or converses on social media with another employee or customer, or even someone with no link to the Company, and expresses potentially offensive views on religion or belief could be guilty of harassment. At the same time, the employer has a right to ensure that employees’ personal views are not interpreted as being reflective of its own.
Taking this into account, it is crucial to have a well written policy on the acceptable use of social media that should be adhered to as part of an employees’ personal and professional life, when connected to their employer.
In the 2014 case of Game Retail v Laws, an employee placed a number of offensive remarks on his personal Twitter account and whilst none of the comments related to the employer and were not written during work time, he had had connections in around 65 stores, some of whom followed his Twitter feed. Therefore, the Company felt that the matter constituted gross misconduct and summarily dismissed him. The Tribunal felt the decision was too severe, but did award a 40% reduction in the compensatory award due to the employee’s contribution to his own dismissal. The Company appealed on the grounds that the Tribunal had substituted its own reasoning rather than considering the logic taken by the employer when making the decision. The EAT upheld the appeal and commented that clear guidance was required within organisations to establish what is acceptable and the possible repercussions if inappropriate comments are made on either private or work-related social media platforms.
Last year, an Employment Tribunal (in the case of Plant v API Microelectronics Limited) considered whether the decision to dismiss an employee on account of a post on her own Facebook page fell within the range of reasonable responses. The Claimant had been employed by the Respondent for 17 years and at the time of her dismissal she had a clean disciplinary record. In 2015, the Respondent introduced a social media policy which clearly stated the things that employees should not do when using such platforms. It also referred to how Facebook was not truly private and set out the potential outcomes of any breach. Later that year, the Respondent announced that it was moving, so tensions were high and the Claimant posted the following comment on Facebook:
‘PMSL bloody place I need to hurry up and sue them PMSL’
A disciplinary hearing was convened at which the Claimant stated that she did not realise that her Facebook account was linked to her employment, but that she did not believe that the comments were aimed at the Respondent in any event. However, she offered no alternative explanation other than they related to a private matter. She was dismissed and on appeal claimed that the comments were nothing to do with the Respondent, instead referring to a joke from years before. Her subsequent claims of unfair and wrongful dismissal were rejected by the Tribunal, which stated:
‘The Claimant was aware of the Policy and one assumes she read it. She must have been aware of what was and what was not allowed. The Claimant would have been aware of the consequences if she breached that policy. Despite this, her profile referred to her position within the Respondent as an operator and dogsbody. It was clearly a description of her job with the Respondent, clear to see it was derogatory and insulting, if not to the respondents then certainly to her colleagues occupying the same position. There is then a reference to that bloody place, the need to hurry up and sue them and pissing myself laughing. In the absence of an adequate explanation from the Claimant, which was sadly lacking, the Respondent was entitled to believe that these comments were aimed at it.’
Garry Humphreys, HR Consultant at EML, comments:
“These judgments emphasise the importance of having a clear and robust social media policy in place. Many employees simply fail to understand how their social media activity can impact on their employment. Employers need to set out what they consider to be unacceptable in this regard and what action it could result in. It is also advisable to carry out regular staff training, particularly in working environments where there’s a high degree of social media use for marketing purposes.”