After weeks of social unrest, far-right ideology has taken the government and media’s attention.
Individuals may have had direct involvement by taking part in far-right riots and inciting violence online, but also may have indirectly been involved by supporting or sharing similar views on social media.
Our Employment Lawyers explore whether far-right ideology can be classed as a ‘philosophical belief’ and protected under discrimination law and what practical action an employer can take if they consider an employee’s social media activity could bring the business into disrepute.
What is a philosophical belief?
Under the Equality Act 2010, an individual is protected from discrimination for their religious or philosophical beliefs (or lack of) that they may hold.
What constitutes a philosophical belief is not defined by legislation but developed by caselaw, with the leading case of Grainger Plc v Nicholson setting out the five-step test:
- The belief must be genuinely held;
- It has to be a belief and not simply an opinion or viewpoint;
- It must relate to a weighty and substantial aspect of human life and behaviour;
- The belief must attain a certain level of cogency, seriousness, cohesion and importance, and
- It has to be worthy of respect within a democratic society and not be incompatible with human dignity or conflict with the fundamental rights of others.
What constitutes a ‘philosophical belief’ is highly fact-specific and depends on the individual’s circumstances.
Would an employee’s far-right position be protected under the Equality Act 2010?
Far-right views centred around Islamophobia are unlikely to meet the criteria for a philosophical belief.
Even if an individual met points 1 to 4 of the above test, it is unlikely that such a belief would be considered worthy of respect in a democratic society as it discriminates against people who are of the Muslim faith.
Support for a political party or protest group espousing such views would also not ordinarily constitute a philosophical belief, as ‘support’ of a party is not the same as a ‘belief’.
However, some beliefs that initially appear provocative can still be considered philosophical beliefs under the Equality Act 2010, and each case depends on the facts.
Can an employer discipline staff outside the workplace because of their social media activity?
This will often depend on the specific facts, but it may be reasonable for an employer to initiate disciplinary proceedings for reasons related to an employee’s social media activity.
Before taking any action, employers should consider whether they have reasonable grounds to believe the social media post could damage their business and whether this would fall under ‘misconduct’ or ‘gross misconduct’.
The risk of reputational damage is heightened depending on the employee’s role (with senior employees likely to be seen as more closely connected to the business), the nature and status of the company with household names and charities gathering more publicity, and the type of social media content shared or created.
What can employers do to manage these issues?
To minimise the risks associated with disciplinary action against an employee, employers should:
- Implement a clear social media policy on appropriate and improper use of social media, whether at work or on your own time, to reduce the risk of reputational damage and potential liability for discriminatory or defamatory comments posted by employees.
The policy should be issued to new starters and set out the consequences of breaching the policy could lead to disciplinary action. - Have a ‘grace period,’ particularly for high-profile roles, where employers can request employees review historical social media posts and remove them as appropriate to avoid them resurfacing and damaging the business.
- Follow a proper disciplinary process and investigation. Whilst there may be cases where the employee’s conduct appears obvious, such as comments posted from an employee’s own social media account, it is still important that the employer carries out a reasonable investigation by collecting evidence and allowing the employee to provide their own version of events.
- Promote a diverse and inclusive working environment by implementing an Equality and Diversity Policy and provide training to set clear guidelines on appropriate behaviour in the workplace. Policies and procedures are the starting point in any employment dispute to show that the employees knew about the conduct expected of them.
Contact Our Employment Team
For more advice regarding discrimination law and employee social media activity, get in touch with our award-winning employment team on:
01619414000
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Anjali Brown
Associate
Anjali has experience acting as an Employment solicitor. Anjali has specialist expertise in a range of employment matters, both contentious and non-contentious.
About Anjali Brown