Handling a twitter storm when your employee is at the centre

In our online world, it is easier than ever for employees to be identified and linked to your business. Customers hold businesses to high moral standards and we now often see campaigns encouraging businesses to cut ties with controversial workers. 

 

Savills Estate Agents faced backlash after an employee’s Twitter account posted racist remarks about England footballers, while a teacher was quickly named after being pictured with an offensive sign at a pro-Palestine march. 

 

Several employers have faced claims about their handling of similar campaigns, including the employers of David Miller, Maya Forstater, Allison Bailey and Jo Phoenix. 

 

It’s understandable that many employers in this position want the issue to go away as quickly as possible. But the risk of being unpopular does not overrule employees’ rights. Don’t just think about appeasing your opponents. It is important to take a step back and consider how to act legally. 

 

 

Companies often try to distance themselves from the employee. They may rely on the implied term of trust and confidence that exists in all contracts, or contract and policy terms about bringing the employer into disrepute. Others rely on “some other substantial reason” as a fair ground for dismissal. However, any response must be proportionate. 

 

Vale Curtains and Blinds faced this dilemma when an employee accidentally emailed a customer, rather than a colleague, describing him in offensive terms. The customer threatened to publicise the comments on social media and review sites, and the tribunal found that this threat was the principal reason the company dismissed the employee. While this “was capable of amounting to some other substantial reason,” dismissal was outside the range of reasonable responses, and the employer had failed to consider more proportionate ways of achieving the outcome 

 

Gypsumtools faced this issue when staff alerted them to a video online, in which ‘paedophile hunters’ confronted an employee. The Crown Prosecution Service had investigated the accusations and not brought charges against the man. The company dismissed the employee due to a risk of reputational damage, and the breakdown of trust and working relationships with his colleagues and the company. At tribunal, the employer claimed this fell into “some other significant reason” for a fair dismissal. 

 

However, the tribunal found that the dismissal was not fair and ordered the firm to pay the employee £21,000 damages. The company breached Acas guidelines by failing to consider alternative options to improve working relations and mitigate the reputational risk. 

 

 

Gypsumtools defence also failed because the tribunal felt the company had prematurely decided the worker was guilty. Similarly Vale Curtains and Blinds's disciplinary process was "a sham designed to placate the customer,” and the result was a forgone conclusion. Had the employer followed a fair procedure, there was “no chance” the claimant would have been dismissed. 

 

No matter what the issue or how serious the complaints, it is vital that you follow your policies and procedures. This should involve investigating before taking any action – if not, it’s time to update your policies. 

 

When Garden Court Chambers faced complaints about barrister Allison Bailey’s tweets, internal emails showed that the Chambers’ responded in haste to try and avoid reputational damage. They departed from their complaints procedure by announcing an investigation, which the tribunal felt implied wrongdoing. The resulting high-profile tribunal hearing generated huge numbers of headlines and did far more damage to their reputation. 

 

In Rachel Meade’s case against Social Work England, the tribunal criticised the regulator for accepting complaints about Meade’s Facebook posts without investigating the complainant’s perception or motivation. 

 

And the Arts Council were ordered to pay Denise Fahmy’s an extra 10% compensation for refused her the right to appeal when they dismissed her complaint. 

 

No matter what the dispute in question, you should investigate the matter fully, follow the correct procedures, and consider all potential responses. If you’re at all unsure, employment law advice could prove to be a valuable investment, avoiding damaging mistakes. 

 

 

Recent cases have centred around religion and philosophical beliefs – including feminists’ gender-critical views, and David Miller’s anti-Zionist views. 

 

Where the backlash concerns an employee’s controversial or ‘offensive’ statements, it is important to consider whether their beliefs could be protected under the Equality Act. If so, you must tread carefully, as any poor treatment could be discriminatory. 

 

A view may be protected if it is: 

 

But even where a belief is protected, there are limits on how it can be manifested. 

 

It is important to find a fair balance between employees’ freedom expression and the interests of people who may be offended. In Allison Bailey’s case the tribunal felt the employer had decided the claimant’s views were wrong “because there was a lot of opposition to the views expressed.” 

 

If there is any chance you could stray into this area of law, it is best to get legal advice. The area is complex, and many people struggle to separate their legal duties from their own moral views. The tribunal has been clear that, just because somebody has taken offence, this does not mean the statement is objectively ‘offensive.’ 

 

 

If your employee acted in a discriminatory way, you could be liable for discrimination that was ‘in the course of employment’. 

 

Whether an act was ‘in the course of employment’ will depend upon the circumstances of the case. Acts in the workplace would almost certainly qualify. Other behaviour that tribunals have considered to be in the course of employment include actions at work events and online interactions between colleagues. 

 

The case of Forbes v LHR Airport centred around the employer’s liability for an employee’s discriminatory Facebook post. The Employment Appeals Tribunal gave examples of when a Facebook post might qualify, including where the profile was used mainly for communicating with colleagues or raising work-related matters. Other key factors were whether the post was made from work equipment or during work time and whether the post referred to the employer or any of its employees. It also looked at whether the account was private or public, and whether the list of friends included many colleagues. 

 

 

If you decide to make a public statement to try and calm the issue, the wording will be vital. Be careful not to take sides or imply misconduct. 

 

Garden Court Chambers probably felt that announcing an ‘investigation’ into Allison Bailey’s tweets was neutral enough. But it departed from their procedure, jumping ahead a stage to go straight to investigation. The tribunal felt this “suggested she had done something which at the least required investigation, and so might lead to action, which could suggest some punishment.” 

 

Maya Forstater’s compensation included £27,000 aggravated damages for injury to feelings, reflecting “oppressive and high-handed conduct.” This referred to the employer’s public statements, after the initial hearing found in their favour, overstating judicial statements and suggesting Forstater’s belief could be compared to bigotry. It is understandable that the employers felt vindicated and wanted to begin recovering their reputation, but it ended up costing them a lot more. 

 

In Jones v Vale Curtains and Blinds, the tribunal was influenced by the fact that the manager “immediately informed the customer that the Claimant had been dismissed (notably, without any apparent regard for the Claimant’s data protection rights).” This made it “clear” that the disciplinary process and dismissal were a “sham design to placate the customer.” 

 

If you feel you must make a public statement (or a private one to customers), ensure it doesn’t imply guilt. Instead, keep it neutral, explaining that you are handling the matter in line with your procedures and will provide an update about the outcome. 

 

It’s sensible to get a legal overview of any public statements to ensure you have fully understood your legal position and aren’t saying anything that puts you at risk. 

 

 

Pressure doesn’t always come from external sources. Lecturer Jo Phoenix resigned due to internal pressure from colleagues, while Garden Court Chambers were influenced by the fact that many of the other Barristers disagreed with Bailey. Gypsumtools decisions to dismiss the employee was partly motivated by the breakdown of trust with colleagues. 

 

Colleagues have the right to disagree, but not to create a hostile environment for those they disagree with. The issue here is that both sides may feel they are the ones suffering hostility. 

 

Phoenix’s colleagues described her views as “problematic and scary” and said having her in the department “was like having a racist uncle at the Christmas dinner table.” Their open letter asserted that gender-critical feminism is “fundamentally hostile to the rights of trans, non-binary and genderqueer people.” An official statement acknowledged the “hurt and a feeling of being abandoned among our trans, non-binary and gender non-conforming staff and students” but failed to recognise the distress caused to Phoenix. However, the tribunal found that it was Phoenix who had been harassed. 

 

It’s no wonder that employers feel nervous about disputes involving protected characteristics. Get involved and you could be seen to be taking sides, but fail to resolve the dispute and you could be allowing a hostile workplace. So, what can you do? Remind staff that disputes should be resolved by following your grievance policy, and that complaints raised outside of the grievance policy will not be considered. You could also remind staff that if they don’t follow the correct procedure, their complaints may amount to bullying. 

 

It may help you to separate the belief from how it is expressed. A philosophical belief does not justify harassing those who disagree. Limiting the expression of a belief might be justified if it is necessary and proportionate, for example to protect the needs of vulnerable clients. 

 

Dismissal should be considered only as a last resort. As the tribunal suggested to Gypsumtools, alternative options could include rearranging workload or shift patterns while the issue settles. However, this itself can cause problems if an employee feels they have been subject to a detriment. For example, if being moved to another department gives them less opportunities or flexibility, or gives the impression they were at fault. 

 

 

One key step is to plan ahead to try and reduce the risk of reputational damage before it happens. Don’t wait until you’re under pressure to respond. 

 

Start with a good handbook, setting out the standards you expect of staff, and the importance of respecting each other, senior staff, and other stakeholders. 

 

Include measures in your social media policy to reduce the risk, such as asking employees not to list their workplace on non-work profiles, to make full use of privacy settings, and not to use social media during work time or on work equipment. Consider how to balance the right to hold beliefs with the need to protect your business. Preventing employees from speaking only on certain controversial issues, or from supporting one side of a debate, could discriminate against individuals who hold those beliefs.  

 

You might need to give extra thought to LinkedIn because it is work-focused. 

 

Your grievance policy should outline how you manage disputes and make it easy for staff to raise issues. Your disciplinary policy could outline how you will deal with misconduct – including bullying and harassment. Make sure your policies are integrated, as policies from different sources might contradict each other. 

 

You could also consider an Equal Opportunities policy, clearly outlining what you do to avoid discrimination and support equality. If you do face criticism, you can point to what actions you are taking. 

 

Lead by example in the way you communicate with your team to create a tolerant and respectful workplace.