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Social Media and Discrimination

Manchester City’s Bernardo Silva has been charged with misconduct by the Football Association over a tweet he sent to team-mate Benjamin Mendy.

Silva compared Mendy to the character on a packet of Conguitos – a sweet brand available in Spain and Portugal.

The Portugal player, 25, is alleged to have committed an “aggravated breach” of FA rules as it included reference “expressed or implied, to race and/or colour and/or ethnic origin”.

Silva has until 9 October 2019 to respond to the charge.

Although his punishment is not being dealt with through the Employment Tribunal system, the situation highlights the need for all employees, whether they are famous footballers or not, to consider carefully their social media use off the pitch, or outside the office.

The Post

The post was published at 12:44 BST on 22 September but was deleted at 13:30, although Silva later also tweeted: “Can’t even joke with a friend these days.”.

We have decided not to provide a link to the post in this email although the tweet is repeated in some reports of the case.

The Charge

In a statement on Wednesday, the FA said Silva’s activity is alleged to have been “insulting and/or improper and/or brought the game into disrepute”.

Anti-discrimination charity Kick It Out criticised the post and urged the FA to act, adding that “racist stereotypes are never acceptable as ‘banter'”.

The Issues

Silva has been repeatedly defended by Manchester City manager Pep Guardiola, who said it would be a “mistake” to punish him for the tweet, while England forward Raheem Sterling supported Silva against accusations of racism, saying it was “a situation between two friends”. Mendy has also written in support of Silva, saying he did not take offence at the tweet.

However, should this mean he avoids punishment or condemnation?

Silva’s tweet was definitely problematic for him and his club. The depiction of black people as animalistic or ugly is not acceptable, and the physical similarity between the Conguitos logo and Mendy is minimal. But at the same time Silva and Mendy are good friends and teammates. When you communicate with friends you let your guard down, you speak with more familiarity, and from time to time you say things that you probably would not say to a stranger.

Further, it is not simply name-calling and physical abuse. The character on the Conguitos logo, which before a relatively recent redesign used to carry a tribal spear, is similar to the kind of images that have been used to degrade black people since slavery, which means comparing it to any black person is unacceptable.

Similar cartoons of white children simply do not have the same degrading connotations. No one ever got offended by the Milky-bar Kid, and it is unlikely anyone would compare a white man with the Milky-bar kid in any event.

Perhaps another equally insulting image would be for example, to compare a female footballer to the Jessica Rabbit character from the Who Framed Roger Rabbit film. If this happened, there would, quite understandably, be condemnation.

The Law

The laws protecting people from discrimination are now well established but these issues also involve the freedom of speech or privacy, meaning different rights are often competing.

The Equality Act 2010 (referred to in a separate article of this newsletter) sets out the legal tests for forms of discrimination.

Article 8 of the Human Rights Act 1998 gives a right to respect for private and family life, home and correspondence. Case law suggests that employees have a reasonable expectation of privacy in the workplace.

The GDPR and Data Protection Act 2018 covers how information about employees can be collected, handled and used. The Information Commissioner’s Office has published an employment practices code to help employers comply with the law.

The Regulation of Investigatory Powers Act 2000 covers the extent to which organisations can use covert surveillance.

The Employment Rights Act 1996 sets out the laws relating to unfair dismissal and the potentially fair reason of conduct.

These are beyond the scope of this commentary but links to them are below.

The legislation has been interpreted through case law to be clear that while the offending conduct may occur outside work hours, any social media or internet misuse may be misconduct amounting to a potentially fair reason for dismissal. This is justified as the proposition that conduct may damage the employer’s reputation, even if it takes place outside of work, is particularly evident when it comes to social media.

What does this mean for employees?

While Silva will not be punished through the Employment Tribunals, the situation is (another) reminder to all employees about the dangers of their online activities; and the apparent ingrained feeling that what is online is isolated and detached from the real world.

Employees must acknowledge that online content can be just as discriminatory and damaging as physical or verbal abuse when face to face; and therefore, quite reasonably, this conduct can be a potentially fair reason for dismissal.

In context, it is likely that most of us have sent things to friends on Whats App that would make us very embarrassed if they were published to the public and so Silva’s main mistake was perhaps to tweet it to the world. You can therefore understand the argument that it was between friends. However, though Silva might not have intended to be racist, ignorance is never an adequate excuse, and one would assume, he has never sent a similar tweet comparing his fellow Caucasian friends.

Employees must consider carefully their conduct, content and actions online. What they write; post or ‘like’ on social media is visible to the public and often to their employers who may even be ‘friends’ or ‘links’; within the network. Employers can easily view, and therefore monitor online activity, and employees should remember that the public are now quite willing to bring it to the attention of your employer.

While the offending conduct may occur outside work hours, case law has established clearly that any social media or internet misuse (and any conduct) may be misconduct amounting to a potentially fair reason for dismissal. In some cases, it may be a repudiatory breach of contract leading to grounds for summary dismissal at common law.

Employees should:

• ensure they comply with the employer’s policies when they use social media;
• review their employer’s social media policies to understand what rights their employers have in respect to their conduct out of work hours;
• be cognisant that inappropriate use of social media apps, even outside work hours in respect of matters which, on the face of it, have no connection with their work, can lead to their dismissal;
• be aware that discriminatory posts, such as the one made by Silva, are in any event entirely inappropriate and should not be being made whether one contemplates whether their boss will see it or not;
• consider their privacy settings on their social media platforms.

What does this mean for employers?

This situation itself is unlikely to change anything for employers.

If an employee made a similar tweet, the key issue for employers to consider is whether or not the employee’s misconduct goes to the employment relationship or affects their ability to do their job.

In Silva’s case, the tweet does not impact on his ability to play football.  However, his activities could clearly damage the employer’s reputation. It is this which is the potential problem for Silva. His club has faced huge backlash for failing to state his tweet was inappropriate and racist.

The story highlights the reasonableness to monitor social media use, and to reasonably consider that what is said/done on those sites, even if outside of work, can be fairly considered as conduct issues that could impact the employment relationship.

What should you do as an Employer?

1. develop a policy setting out what is and what is not acceptable behaviour at work and outside of work, when using the internet, emails, smart phones, and networking websites, including group messaging platforms such as Whats App;
2. be clear throughout your policies about the distinction between business and private use of social media;
3. expressly state that inappropriate social media may be treated as a disciplinary issue;
4. review your social media policies to ensure that they are sufficiently wide enough to protect your legitimate interests but not too restrictive to deter people from working for you;
5. ensure that your social media policies (and all policies) are easily accessible and that you have systems in place to ensure that employees are aware of the policies and any changes to them;
6. consider arranging equal opportunities and/or diversity training;
7. ensure you properly investigate any allegation that an employee has posted the offending content;
8. ensure you follow a fair process as outlined in your investigation and disciplinary policies;
9. be consistent; reasonable and fair;
10. engage with staff and unions or staff reps (if there are any) to ensure the employees do not feel gagged; staff and managers feel protected against; and you feel confident your reputation will be guarded.

Comment

The issue of Silva publishing a single unintended racist tweet about a teammate will not have a significant impact on British society or the wider world of work and employment law.

Nevertheless, football has always reflected society. The game has never before been the focus of so much attention or enjoyed such riches, and it should use them to make sure it is not simply reflecting society but leading it.

Some clubs, and many sectors of work, have a problem with ingrained behaviour, with cultures that have built over decades and need to be shifted, and it will take some hard work to get there. It’s too easy to condemn “a small minority of fans” or an individual employee. A club or employer could do that every week without ever changing the way a single one of their supporters or other staff behaves.

If nothing else, it should remind us all of the prejudices that still exist and the game should, and that we all have a duty to keep working to ‘Kick it Out’.

Useful Links

Equality Act 2010

Human Rights Act 1998

Data Protection Act 2018 and GDPR

Employment Rights Act 1996

Don’t forget getting advice from a Solicitor does not have to be complicated or costly!

Photo by Kelly Sikkema on Unsplash