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The perils of social media and employment law

It is not often in my career that two of my passions overlap, but when they do, they can create a cautionary tale for employees everywhere. Apart from employment law, one of my primary passions is musical theatre. Over the last year an interesting scenario has been developing in the theatre world which provides us with a cautionary tale on the dangers of social media.

Seyi Omooba, an actress known for her roles in Hadestown and Spring Awakening amongst others, accepted the role of ‘Celie’ in the Color Purple at the Leicester Curve Theatre, starting in 2019. The musical is based upon a book of the same name, in which the character of Celie falls in love with another woman, and in the story, it is unambiguous that this is a positive and loving lesbian relationship. When it was publicised that Ms Omooba had been given the role, another performer called her out on Twitter for a Facebook post written in 2014 where Ms Omooba made clear that she had very strong Christian beliefs and did not believe people could be born gay, and that being gay is not right, even though the law made it legal.

The discovery of these messages understandably sparked a huge backlash on social media, however Ms Omooba refused to retract her previous statement and stood by the sentiments expressed.

Members of the cast and crew, many of whom are LGBTQ+, stated that they felt uncomfortable working alongside Ms Omooba whilst she held such views, and questioned if she had accepted the role without understanding it. It was clear that the production company and theatre had a problem on their hands and a decision had to be made with regards to one of their leading performers. There became a very real fear that the audience would not connect with Ms Omooba as Celie, which in turn would lead to the production being undermined.

Whilst investigating matters, the backlash against the theatre continued with calls for boycotts and protests playing out through social media.  The theatre ultimately made the decision to relieve Ms Omooba of her duties as Celie and recast the role.

Owing to her dismissal, Ms Omooba brought a claim against her former agents and also Leicester Theatre Trust Ltd at the Employment Tribunal. The claims brought related to discrimination on the grounds of religion or belief, harassment, and breach of contract.

The case was heard in February 2021 through the Tribunal’s cloud video platform. In its judgment, the Tribunal found that Ms Omooba must fail in all of her claims against both Respondents. As part of their findings, the Tribunal weighed up Ms Omooba’s rights to religion and belief, along with Article 9 of the European Convention on Human Rights which provides for the freedom of thought, conscience and religion. Ultimately, the tribunal found that the Respondents did not discriminate against Ms Omooba for her religion or belief.

In addition, as part of the tribunal’s findings, it was discovered that once Ms Omooba realised that the character was gay, she would not have played her anyway. This was fatal to any claims of breach of contract brought by the claimant.

The interplay of discrimination on the grounds of religion and belief is an interesting topic, and is something all employers should consider when discovering statements or social media posts by individuals engaged by them, which could be seen as being contentious in today’s society. We have previously covered how to manage a scenario on religion or belief in our 2019 article available here.

Up until 10-15 years ago, what was written on social media wasn’t really considered a concern, as it was a new and emerging technology. Now, with a proliferation of sites and a generation of young (and older) people having multiple profiles, most people play out a greater or lesser portion of their lives and beliefs on one platform or another.

Whilst social media has many benefits, it has a number of pitfalls for employees and employers alike. There are a number of risks that social media usage brings to employers, including reputational damage, bullying and harassment claims, possible disclosure of confidential information, or employees writing / sharing offensive material.

There have been several employment law cases in this arena, including Preece v JD Wetherspoons, where an employee of the pub chain posted about a customer on her personal Facebook page thinking only a small number of people could see it, but was dismissed for gross misconduct as the post was seen and reported. As Wetherspoons had an internet policy, and a breach of this was stated as one example of gross misconduct, the Tribunal found that dismissal was within the range of reasonable responses.

Other cases which ended badly for the employee include tweets on a personal account making derogatory remarks about towns that the Claimant had visited (Laws v Games Retail Ltd), comparison of the workplace to “Dante’s inferno” on a Facebook page (Weeks v Everything Everywhere Ltd) and a case where historic tweets (2-3 years old) making derogatory comments about colleagues and his employer ended the 30 year career of an employee (Creighton v Together Housing Association).

Social media is not going to go away any time soon, and the upcoming generation of employees has had a world where social media has been omnipresent their whole lives. It is important to remember what is written now can have an impact on your employment prospects for years to come, as the Youth Crime Commissioner Paris Brown (then 17) found out in 2013 when she was forced to resign the post after a week due to tweets she wrote between the ages of 14-16.

Employers have to be alive to the fact that an individual’s social media presence can lead to issues with reputational damage and take steps to manage this. Ironically, social media is often at least a part of how an employer will engage with clients and customers, and employees are often encouraged to have LinkedIn accounts, or to post on their employer’s social media platforms to encourage interaction with the general public, so it is important to make sure that the balance between use and censure is managed carefully.

What does this mean for you or your business?

It is important that employers check that they have social media or internet policies that will allow them to take appropriate action. It must make clear that breach of the policy can be a case of gross misconduct which will be dealt with under a disciplinary policy and may lead to dismissal.  If you expect employees to blog, post or run your social media accounts, make sure that you have clear guidelines on what is acceptable and disclosable on the platforms.

Social media is likely to be a key part of the way businesses interact with the general public for years to come, so it is important that employers are protected from social media misuse either on their platforms or on an employee’s individual accounts.

What do you need to be doing now?

Check that you have an adequate social media policy, and if you do not, or would like it refreshed, please get in touch!  

Recommended Reading

Ms Seyi Omooba v Michael Garret Associates Ltd and Leicester Theatre Trust Ltd

 

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.

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