Employer Imposing Disciplinary Measures in the Workplace on an Employee for Discrimination and Misconduct in posting racist comments online

Racist abuse posted online can attract public attention very quickly. After the Euro 2020 final in July 2021, for example, several England players were targeted with racist abuse on social media. In cases like this, members of the public have identified the people responsible, found their employers through sites such as LinkedIn and called for them to be dismissed.

This is not a new problem, and it raises a practical question for employers: what can you do when an employee posts racist or discriminatory content on their personal social media?

Why the employer’s response matters

How an organisation handles this says a lot about its values and culture. Taking a clear stand against racism and discrimination is the right thing to do, and it can build trust among staff, which helps with retention and recruitment.

If the employee can be linked to the organisation, the posts may also damage its reputation and its relationships with staff, clients and customers. A consistent response also sends a clear message to others.

Can you discipline an employee for personal social media posts?

Often, yes. Even when posts are made outside work, they may amount to misconduct, or cause reputational harm, that justifies disciplinary action up to and including dismissal. It depends on what was posted and the circumstances.

Unless the contract or policies expressly prohibit the conduct, behaviour outside work will only justify a fair dismissal if it affects, or is capable of affecting, the employee’s job or the employer. Relevant questions include:

• Can the employer be identified from the posts? For example, does the employee name their employer on their profile, or has someone reported the posts to the employer?
• How public were the posts? Posts that anyone can see on platforms such as X, Facebook or LinkedIn, where colleagues, clients or customers may see them, carry a greater risk to the organisation’s reputation.
• Have customers, suppliers or colleagues raised concerns or asked the employer to act?

Be careful about monitoring employees’ online activity. It raises data protection and privacy issues, and any monitoring should be lawful, proportionate and transparent.

Follow a fair procedure

However serious the posts, follow a fair procedure. Investigate properly, keep evidence of what was posted, where it was posted and how many people may have seen it, and give the employee the chance to respond and to explain any mitigating circumstances before a decision is made.

Our guide on how to conduct a workplace investigation and our page on investigations, disciplinaries and appeals explain what a fair process looks like.

If the procedure is unfair, the employer is more likely to lose an unfair dismissal claim, whatever its intentions. Compensation is made up of a basic award and a compensatory award, which is currently capped at the lower of 52 weeks’ pay or £123,543.

The compensatory award can be increased by up to 25% if the employer unreasonably fails to follow the Acas Code of Practice on disciplinary and grievance procedures, and the cost of defending a claim can be significant. A tribunal can, however, reduce compensation where the employee’s own conduct contributed to the dismissal, in some cases to nothing, even where the procedure was unfair.

Getting this right will matter even more from 1 January 2027, when the Employment Rights Act 2025 reduces the qualifying period for unfair dismissal from two years to six months and the cap on the compensatory award is due to be removed.

How would an employment tribunal assess the case?

Misconduct is one of the fair reasons for dismissal, but the tribunal will ask whether dismissal fell within the range of reasonable responses open to a reasonable employer. It does not substitute its own view. It will look at whether the employer genuinely believed the employee was guilty of misconduct, had reasonable grounds for that belief and carried out a reasonable investigation. Before deciding on a sanction, consider:

• What exactly did the posts say, and could they amount to a criminal offence?
• What impact have the posts had, or could they have, on the organisation?
• Were staff made aware of the organisation’s position on equality through contracts, policies and training?
• Are there aggravating or mitigating factors, such as length of service, a clean record or a genuine apology?
• Has the organisation dealt with similar conduct consistently in the past?

Making these situations easier to manage

A clear social media policy that treats posting or sharing racist or other discriminatory content, including on personal accounts, as serious misconduct makes it much easier to defend disciplinary action. Apply the policy consistently, while keeping each response proportionate to the facts.

Training should make clear that the organisation has zero tolerance of racism, discrimination and harassment, explain why, and set out the consequences of breaching the policy. Our employment law advice for employers includes help with policies, training and disciplinary decisions.

If you need advice on an employee’s social media conduct, book a free 30-minute consultation with our employment solicitors or call 0141 471 9166.