What employees need to know about making racist posts

By Anita Jaynes on 13 July, 2021

The racist posts made by thousands of people following England’s defeat at the Euros have been widely condemned. 

But what consequences could employees face for posting such offensive messages?

And what penalties could employers face if such behaviour goes unchecked?

Polly O’Malley, Employment Lawyer at Stone King solicitors in Bath explains.

I often advise employers facing allegations of discrimination from employees but it is far less frequent that I advise in respect of discriminatory behaviour displayed by an employee. In fact, I am struggling to remember the last time I did. Given the onslaught of comments flooding social media today, this clearly does not mean that it is no longer a problem. We must ask ourselves – is there a reason why this behaviour is not formally challenged more often? Is it that employers are unsure of their entitlement to regulate behaviour outside of work, that colleagues are afraid of stepping forward, that they do not see their workplace as a ‘safe space’ or simply that employers see this as something they can ignore as long as it is not ‘on their watch’?

We should all be aware of the moral and social obligations to challenge such unacceptable actions, but what about the legal options? Employers must be aware that an employee can be dismissed for misconduct taking place outside of the workplace, and the use of racist language and making of online threats could potentially constitute gross misconduct justifying immediate dismissal without any entitlement to notice. That would also need to be reflected in any subsequent reference for that individual and, in certain regulated professions, may even need to be reported to the regulator meaning that the employee may not be able to work in that role in the future.

Employees who suffer racist (or other discriminatory) abuse at work should report this immediately to their employer, which is legally obliged to investigate the complaint and take appropriate action. If one employee discriminates against or harasses another, the employer will be liable unless it has taken reasonable steps to prevent such conduct from taking place.

Individual employees should also be aware that they do not have to be the victim of discrimination to benefit from protection under the Equality Act. In particular, Harassment can be enforced by individuals other than the victim if the behaviour is ‘related to’ race (or another protected characteristic).  Harassment occurs when the conduct of one individual has the purpose or effect of violating another person’s dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment. This would include, for example, making remarks about Black or Asian people that colleagues (regardless of their race) find offensive. It is also worth bearing in mind that harassment need not be targeting at an individual but can also consist of a general culture which, for example, tolerates the making of race-related comments, nicknames, teasing or other behaviour which may not be intended to be malicious but is nonetheless upsetting.

Pictured above: Polly O’Malley, Employment Lawyer, Stone King