Avoiding a Danny Baker Type Blunder!

This week Danny Baker was sacked from the BBC for posting a picture on Twitter of the latest royal family arrival depicted as A suited chimpanzee.(https://www.bbc.co.uk/news/entertainment-arts-48212693).

In response to fierce criticism about the post Mr Baker was adamant that he saw no racist connotations in what he was posting and had intended only to poke fun at the royal family showing them interacting with circus animals.

So, if this was your employee posting tweets that could be considered racially offensive what would you do? Would you sack him? Undoubtedly there would be a risk of such a situation causing ill feeling amongst your staff, or even customers, if the situation went unaddressed. In reality if your employee works for you in a role with a low public profile it could be difficult to dismiss for a first offence unless you could show that you had clear   rules in place prohibiting such behaviour and that you had given your employee a reasonable opportunity to understand those rules.

So, what can you do?

Well, the starting point is to have clear contractual obligations, policies and procedures. The key elements are your  your contract of employment, disciplinary policies, and any equality and diversity policies.

The right of a company to protect image is not absolute and a court would balance that right with the right of an individual to a private life. There have been cases where dismissals for posting derogatory comments about an employer on social media have been found to be unfair because the comments were not serious enough or the employee had not been warned sufficiently of the consequences. In Crisp v Apple Retail (UK) Ltd ET/1500258/11 the court found that it was fair to dismiss an employee for posting Facebook comments. It was critical to the tribunal’s decision that Apple had made clear in its policies and training materials that protecting its image was a “core value” and had drawn attention to the fact that making derogatory comments in social media was likely to constitute gross misconduct. The court considered Mr Crisp’s right to privacy but found that he did not have a reasonable expectation of privacy in respect of his Facebook page (despite his privacy settings) since he had no control over how his comments might be copied and passed on.

Contract of Employment

What you put into a contract of employment will depend to some extent upon the role to which you are recruiting.  A standard contract is usually sufficient for junior members of staff if you are going to have senior employees or employees with access to key clients/ who will be representing your brand on social media it’s a good idea to get contracts tailored (particularly with regards to restrictive covenants and any warranties related for example to professional qualification). However you manage your contracts, what is absolutely essential is that those contracts reflect the needs and the culture of your business: just like Apple, reflect your core values through all activity with employees.

Disciplinary Procedures

In your disciplinary procedure it’s absolutely essential that you make clear any behaviour that will amount to gross misconduct in your particular organisation (especially if such conduct would not ordinarily amount to gross misconduct in every organisation). If you have employees that use social media for work and they are quite clearly linked to your organisation and your branding you need a clear policy, backed up with training, that sets out what you consider to amount to acceptable behaviour and identifies what you would consider  as controversial comments on social media.

Equality & Diversity

The world is changing quickly, in many cases for the better. We’ve reached a time where there is a lot more awareness of the fact that our differences are something to be celebrated rather than used against us. However, some of your employees will struggle with this. I’ve seen cases where colleagues have been friendly for 15 years and then one unintended but toxic word has destroyed the relationship, as well as resulting in a dismissal. That particular case was upsetting for everybody.

Nobody, including you, wants to lose good people as a result of ignorance. When it comes to a equality and diversity what is accepted as a social norm regularly changes in society. Some comments, Particularly linked to gender place of birth race age etc, that were deemed perfectly acceptable in the workplace 20 years ago are no longer acceptable and cannot be tolerated. I’m not sure I buy that anyone with his experience and status could be so ignorant as Mr. Baker claims to have been but it is not uncommon in my experience for people to struggle with what is and is not socially acceptable.

Mr Baker‘s point that he had no idea that his comments would cause offence raises an interesting point, how do you know what is offensive? The answer is through training. When managing working relationships it is often not the blatantly unpleasant people that are difficult to mange (because we can just take them through a procedure) but those who can occasionally be insensitive or lack awareness. Everybody spends a lot of time at work and as managers and employers, we have a responsibility to ensure that those working environments are not toxic or intolerable.

Commercially there is often a temptation to think “if it’s not broken don’t fix it”, in other words there is no reason to take action unless there has been a complaint. However, it’s the unseen costs and the risks of not knowing that you have an issue until it’s too late that you need to guard against. Discriminatory comments in the workplace are dangerous: they would undoubtedly lead not only to poor working relationships, low productivity and a hostile environment but also in some cases the risk of a claim. The only way to avoid the situation is to educate your staff. Have an up-to-date equal opportunities, anti-bullying and harassment policy and make sure that your train staff on what that means. Free resources are available from ACAS www.acas.org.uk or the EHRC.org.uk  You can write a short training course (as a brief toolbox talk) and deliver it yourself in house.

If you do decide that you would like some further information or support with any of the issues raised in this blog please get in touch via emma@hremploymentlaw.co.uk or 07891332334.

If you would like to sign up to a regular newsletter get in touch by email (above) or use the contact form at www.hremploymentlaw.blog

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