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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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An employee has posted discriminatory racial and religious

Customer Question

An employee has posted discriminatory racial and religious comments and offensive pictures regarding various protected groups. The face book matter has been brought to the employers attention by other employees and there is no privacy on the account. The discriminatory comments offend the employers values and principles as Service provider to vulnerable individuals they find this to be a breach of trust and confidence by expressing predudicial comments on a public forum. There are no known conduct matters other thanthe member of staff directly disobeyed a management instruction at the same time . Also commented to staff about their dislike of certain groups in society- now states this was in jest. Training in Equality and Diversity training has taken place the individual achieved a high pass mark The employer is not mentioned on Facebook therefore no link to brand. Is summary dismissal reasonable in the circumstances? Thank you
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello how long has this employee worked there for?
Customer: replied 1 year ago.
Two years past September 2015. The employee admits he has done wrong ( 55 year old male) says the comments were about his hatred of ISIS but refers only to Muslims . In addition says although 24 years in abstinence he has stopped attending support groups ( no issue with addiction caused) his head was filled with stories of Atrocities after brother in law returned from Afghanistan although postings started before this. Other derogatory marks are about little people who play darts -' midget archers ' very juvenile comments between others like ' don't lower the bar' when challenged to mind PC monitor on Facebook he says F**** them it's free speech. We work with all nationalities all denominations and are a Christian charity. The individual says despite acknowledging he was not to go back to a service user (SU) who had made a complain said he was following his 12 step programme ( address those you have offended) although the SU is quite unwell going through own withdrawal and issues. Much behaviour of speaking to others in commanding way and not taking feedback well. Supervision notes poor and individual feels line manager has picked on him rather than tried to correct behaviour.
Employee takes full responsibility for his actions has apologised and is contrite willing to apologise and deal with supervision matters. The employer feels our code of no discrimination , valuing all and the SSSC code of upholding public confidence in the member of staff and ultimately the employer have been breached.
An option is Fist and Final and move to ano her service but we are concerned regarding risk for any other race of SU.
I am going to a funeral so will need to get back to you later this morning- would calling be easier? Many thanks Laura Crooks
Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience, and sorry I was offline when you replied. As this person has 2 years’ service they will be protected against unfair dismissal. This means that to dismiss the employed needs to show there was a fair reason for dismissal and also follow a fair procedure.
Whether or not an employer can take disciplinary action or even dismiss an employee as a result of their activity on social media is a tricky issue. A balance must be struck between an employee's right to private life and the employer's right to not only protect its business and reputation but also its employees.
Employers should only take formal action against an employee's use of social networking websites where there are valid concerns about this having a detrimental effect on the business, including any adverse effect on other employees. Common examples can include:
• Comments that can amount to bullying or harassment of other employees
• Complaints about the employer that can bring the business into disrepute or affect its reputation
• Serious breach of commercial confidentiality.
It is also important to consider the potential readership of these comments, for example how public they were made. If the settings were private and only a limited number of people not related to the business could read them, then the seriousness of the offence may not be great. Similarly, if there was no way of identifying the employer from the comments or from your personal information, it would be difficult for the employer to argue there was damage done to its reputation.
Some useful pointers in deciding the fairness of disciplinary action taken by an employer include:
• The nature of the comments and how offensive they are
• Whether the comments are made on a purely personal social media account
• Whether privacy restrictions are in use so that only friends can see it
• Whether there is anything on the employee’s profile or in any of the comments to link them to the employer
• Whether the comments say anything derogatory about the employer or its customers and employees
• Whether the comments are posted in an employee’s own time or in work time
• Whether the employee uses his own equipment or the employer’s
• Whether the disciplinary rules make it clear what sort of misuse of social media gives grounds for disciplinary action.
If the comments concerned another member of staff and that person saw them or another employee took offence, disciplinary action can be justified although the punishment would need to be determined in line with established employment law principles. These would include examining the nature of the comments and how serious they were (e.g. racist, sexist or other seriously offensive comments could justify dismissal), the employee’s disciplinary record and length of service (the longer one has worked there and if their disciplinary record is clean, the more an employer should think about issuing a warning rather than dismissing).
In summary, it is entirely possible for disciplinary action to be taken in the circumstances but the outcome needs to be carefully considered taking into account the nature of the comments, the context in which they were made and how they have affected the business and/or other employees.
So dismissal is indeed an option if you genuinely believe it has affected the company’s reputation and/or fellow employees. However, be careful if this has been brought on by a medical condition, which could amount to a disability (it can include mental conditions too). In that case maybe a final warning would be more appropriate, especially considering the fact they have expressed remorse and are willing to work to resolve this.
I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Expert:  Ben Jones replied 1 year ago.
Hello, I see you have read my response to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.

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