Q&A: Anti-Muslim sentiments expressed on social media

I have become aware that an employee has made comments on Facebook about Muslims being ‘unwelcome in the UK’ and has used racist language. What should…

In the wake of the Paris attacks of 13 November 2015 I have noticed a surge in anti-Muslim sentiment on social media. I have become aware that one of our employees has made comments on Facebook about Muslims being 'unwelcome in the UK' and has used racist language. I am extremely uncomfortable about this as equality and diversity is a priority in our organisation. What should I do?

This is certainly an unpleasant dilemma and your concern is understandable. 

However, unless the employee has made these remarks on a work-related social media feed (which is highly unlikely) or their employer can be clearly identified from their personal Facebook profile, it is advisable to tread carefully. If you are aware that an employee has acted in manner that is not consistent with the values of your organisation, you are entitled to take action. You are not obliged to disregard conduct simply because it occurs outside of the workplace. However, where the remarks made are ‘private’ (albeit publically visible) and are not ostensibly work-related you will need to clearly show how the posting of these comments impacts on the employee’s ability to perform their role or affects their suitability for continued employment. 

As an employer you may be vicariously liable for any discrimination or harassment of an employee by their colleagues. How did this matter come to your attention? Was a complaint raised by a fellow employee? If another employee has seen and been distressed by these remarks this will strengthen your ability to take action (and will probably mean you need to do so). However, even if you have become aware of these remarks by a less direct route, dismissal may still be a reasonable response (depending on all the circumstances of the case). 

When you meet with the employee make sure that you have all necessary evidence to hand. Is it possible to print out the relevant social media threads to review with the employee? Ideally these should be supplied in advance of the meeting. However, it is important to avoid ‘digging’ too deep or too far back for evidence of inappropriate comments. Whilst it is important to conduct a proper investigation a ‘fishing expedition’ may undermine the fairness of the process. 

When you issue your written dismissal decision you will need to carefully explain your rationale. For example, you may wish to emphasise your credentials as an equal opportunities employer and explain that you are no longer comfortable with allowing this employee to interact with customers, clients, suppliers or colleagues from diverse backgrounds. If you are relying upon reputational damage to your organisation or bringing the organisation into disrepute, make sure you consider and explain why the post may be linked to the organisation and what aspects of the individual's profile, post/feed, or friends/followers mean that the link can (or has) been made. 

If you decide on a penalty short of dismissal it is strongly advisable to put in place preventative measures to help guard against a recurrence. Refresher training in equality and diversity principles would be a good place to start. 

This may be a good time to remind employees of your Equality and Diversity policy and to reiterate that actions or language that breach its principles will not be tolerated in the workplace. Explain clearly, if your policy does not do so, that this includes remarks made on social media. If you have a designated social media policy it may also be worth issuing a simultaneous reminder about the parameters of acceptable use. 

This is a notoriously sensitive and difficult area. Seek specialist legal advice from your usual contact in the Weightmans employment pensions and immigration team if it you are unsure of how best to proceed.

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