New game - old rules

  • Insight

08 November 2017

When you are a public figure, in the world of sport or anywhere else, everything you ‘say’ is scrutinised.

Recently the Australian rugby player, Israel Folau, tweeted “personally, I will not support gay marriage”. The tweet has provoked backlash from teammates and a range of reactions. But what should UK employers do when their employees express “personal” views on social media?

The area is fraught with difficulty. Social media may be a relatively new phenomenon, but the same old rules and principles apply.  

Often the most difficult cases are those where an individual’s right to express their religious beliefs might infringe upon an individual’s right to be treated no less favourably on the grounds of sexual orientation. 

“Sexual orientation” and “religion or belief” are both protected characteristics under the Equality Act 2010. Employers are not precluded from taking action, but must act in a way which is “proportionate”. 

There is a considerable amount of decided law in this area which considers what action by an employer would be “proportionate”. The context of any comment or other conduct will be crucial in determining this.

In an employment context, the fact an employee does not purport to express the view on behalf of their employer would be relevant. For instance, if a personal Twitter account was used and there was a statement making clear that it was the employee’s personal view.  It may also be difficult to argue that an employee has brought the employer into disrepute when the views are clearly not endorsed by fellow employees. 

Other factors of importance would be what, if any, limitations the employer has sought to place on an employee’s use of social media. The blatant breach of a policy might give sufficient grounds for a misconduct dismissal even where religion is a factor. Employers can place limitations upon an individual’s ability to publicly express their personal views in certain circumstances. Where the individual is famous and clearly identifiable as an employee of the organisation and a role model – it would be understandable if the employer had strict policies in place.

Therefore, whether an employer could take action will depend very much on what guidance has been given to the employee in the form of policies and training and what impact the employer has experienced as a result of the employee’s breach of policy. 

The fact that an individual has expressed a view with which their employer disagrees with or which others find offensive is often not enough, of itself, to justify disciplinary action.  In this context it is likely to be necessary to show that the employee was effectively “well warned” and/or that the fallout from the comment was significant enough to justify action.

The key message is, be mindful of what you say on social media when expressing ‘personal’ views, as whether you are an employer or an employee, there could be negative consequence and reputational damage.

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