As England continues to reel from the devastating defeat at the Euro 2020 final last night, perhaps the bigger disappointment comes from the racist abuse aimed at Bukayo Saka (19), Jadon Sancho (21) and Marcus Rashford (23) on social media after the match.

Whilst the trio helped to carry the England football team to their first major tournament final in 55 years, it seems this was not enough to hold back the online trolls who took to social media just minutes after the final whistle.

Sadly, this behaviour is nothing new and, while the last few years have seen increased conversations around tackling the problem, these deep-rooted issues continue to exist. Although racism is not exclusive to social media (for example, Marcus Rashford’s mural in Manchester was defaced in the early hours of this morning), it is hard to deny its dominance online.

Social media allows online users to interact and share information publicly or privately with one another. While there are a whole host of benefits, there is no denying that a number of risks also follow. Having the ability to post anonymously means individuals have the platform to say anything and everything they want without fear of being held accountable. Given that there are very few restrictions around what can be posted, the damage will already be done before action can be taken (if a post is taken down for example).

What we have noticed recently, like the reaction to the video posted online a couple of weeks ago of the alleged assault of Chris Witty, is that people increasingly expect employers to hold individuals to account when they conduct themselves in an unacceptable manner which does not reflect the employer’s values – today, a number of people have taken to Twitter to share the racist comments they have seen with the employer of the person making the comment. Some employers have responded stating that they will be investigating and, as was widely reported, one of the people in the Chris Witty video was dismissed from his role. It makes for interesting times when it is so much easier now to monitor people’s behaviour and members of the public are starting to take the potential careers of these individuals into their own hands. 

From a legal perspective, we are often asked what steps an employer can take if it comes to its attention that its employee has been using social media inappropriately outside work. As is often the case, it is not a straightforward answer, and each matter will turn on its own facts. Employers are expected to act reasonably in handling any allegations (including properly investigating allegations of misconduct) and it will rarely be the case that dismissal without any investigation would be appropriate (although this may depend on the severity of the circumstances).

There is also a bigger challenge as employers must be able to demonstrate that the employee’s conduct has a negative impact on the employment relationship.  If an employee acts in a manner which is so contrary to the values of the employer to the point where it could damage the employer’s brand/reputation, this will assist an employer in showing that its decision to discipline/ dismiss was reasonable. While employers cannot stop their employees from using social media in their own time, a sensible and considered social media policy is essential.  

What is clear, however, is that the public and employers are reacting so publicly to racism now more than ever before and will expect some sort of accountability. Whilst there will always be differing opinions and beliefs, we can hope that social media will be used more positively to bring people together to promote equality and diversity and to condemn intolerance and hate #notoracism #KickItOut

For advice and assistance in the preparation of appropriate social media policies and/or on how to handle issues relating to employee behaviour and the use of social media, please contact Siobhan Howard-Palmer or Heena Kapadi or your usual contact within the Brabners Employment team.

This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.