Recent news has been filled with well-known public figures who posted inappropriate social media posts years ago and are now being reprimanded for it. HRreview investigates how HR teams should approach this issue. 

Just a day before the Tokyo Olympics, Kentaro Kobayashi – Director of Olympics Opening Ceremony – was dismissed after comments he made in 1998 resurfaced. Within this, Kobayashi appeared to make light of the Holocaust.

However, well-known figures being punished after historical social media posts re-appear is becoming increasingly prevalent.

Ollie Robinson, a bowler on the England test squad, was also suspended after tweets written ten years ago, containing slurs, racist and sexist language, were unearthed.

The topic of social media has always been an important one for HR teams, with many organisations choosing to implement a social media policy.

However, the length of time which has passed since the posts were created throws up additional questions for HR.

Suzanne Staunton, Employment Partner at JMW Solicitors, urges employers to “exercise caution” when seeking to discipline employees for alleged historic behaviour.

Ms. Staunton continues:

First, the evidence may be less cogent, which may make it harder for an employer to conduct an investigation.

Second, the employer will need to look at the alleged misconduct, place it in its context, and look at all other relevant factors.

If for example someone once held bigoted views, but changed those views, and then did a lot of work to promote diversity and inclusion, then it may be difficult for an employer to say that a disciplinary sanction was within the range of reasonable responses.

At all times the employer should act proportionately, bearing in mind the passage of time, without repetition.

Ms. Staunton also noted the protected characteristics covered by the Equality Act 2010, namely philosophical beliefs:

Generally, when looking at tweets, employers will also need to be extremely mindful of employees rights to hold philosophical beliefs, and when seeking to put employees through the disciplinary process, will need to look at first, whether what was said might constitute a philosophical belief (which is a complex legal test), and second how they have manifested that belief.

If that belief has been set out in a harassing and hateful fashion, then it may justify disciplinary action, as the employer is not then disciplining the employee for the belief, but rather, the vitriol used.

Kate Palmer, HR Advice and Consultancy Director at Peninsula, added:

When dealing with historical social media activity, employers should consider what the impact on their business is or could be.

The specific organisation, role of the employee and the topic of the activity are likely to be pertinent factors when deciding how to manage the employee.

Remember that dismissals can still be unfair regardless of what the employee is alleged to have done.

It’s not always about whether they did it or didn’t do it; it’s more about whether the employer acted in the way a reasonable employer would, given the facts. The decision to dismiss must be reasonable and a fair procedure must be followed, including holding a formal meeting with the employee.