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When is an employer liable for staff misuse of social media?

30th August 2019

Social media has made communication quick and easy for many people. A problem with this is that it has also enabled offensive or abusive comments or images to be spread quickly and easily. This can be an issue in the workplace, particularly in conjunction with the established principle that employers can be held responsible for the actions and behaviour of their staff.

Employers can be held responsible and liable for discriminatory behaviour of their staff, including for harassment. However, section 109 Equality Act 2010 makes it clear that for the employer to be held liable for any unlawful discrimination by their employee. This states that anything done by an individual “in the course of their employment,” can be treated as also having been done by the employer, unless the employer can show that it has taken all reasonable steps to prevent the individual from doing that thing.

Over some years the courts have been prepared to extend the range of circumstances that might be considered as being within the “course of employment.” The Equality Act 2010 extends the scope of the potential responsibility of the employer to cover its agent under its authority. Therefore, this can include people that are working there through an employment agency, temps, and staff that have been seconded as well as the regular staff. This broad scope makes it important for employers to understand and appreciate the responsibility and take steps to control the conduct of their staff (for whom they may become liable). The extent of the liability also poses problems in the context of broad and regular use of social media.

In the case of Forbes v LHR Airport Ltd, the Employment Appeals Tribunal (EAT) ruled that the employer was not liable for harassment under the Equality Act 2010 when an employee, a security officer, posted a racially offensive image on Facebook and then shared it with a colleague. The Claimant in the case was shown the Facebook post by colleague of the security officer that posted the image. In other words, the Claimant was not the person to whom the security officer had sent the image. The security officer had sent the image with the words “let’s see how far he can travel before Facebook takes him off.” The image had not been posted by the security officer while at work, or from a work computer or device.   

The Claimant (ie the person that was shown the image by security guard’s colleague) raised a grievance about the image. That grievance was upheld, and the security guard was disciplined. The security guard did appear apologetic in the disciplinary process when the offensive nature of the image was explained. An apology was offered by the security guard that posted the image.

The Claimant was then put on the rota to work alongside the security guard. The Claimant raised a complaint about this, and as a consequence the security guard was moved to a different work location without any explanation being given. The Claimant went off work for a period, and subsequently brought a claim of harassment against the employer (relying on the principle of them being liable for the actions of the security guard that had posted the image on Facebook).  

In the Employment Tribunal the claims of harassment and discrimination were rejected. The Employment Tribunal concluded that the action of the security guard in posting the image on Facebook was not done “in the course of employment”, which was essential if the employer were to be held liable for those actions. The security guard had not been in the workplace at the time the image was posted, nor did the image refer to any particular colleague or the employer. The image had been originally shared on Facebook amongst a private group which did not include the Claimant. While the Employment Tribunal accepted that the image was offensive, it did not accept that that it caused the Claimant offence, and it concluded that it had not been the purpose of the image to cause the Claimant offence. It also concluded that in light of the willingness of the security guard to give an apology in the disciplinary process that it was not reasonable to conclude that the behaviour of the security guard would have caused offence to the Claimant.  

An appeal was brought by the Claimant to the EAT. The EAT dismissed the appeal. In deciding if the action had taken place “in the course of employment” the EAT noted that this is a question of fact in each case, and that the normal meaning of those words should be considered in deciding that question. The EAT accepted that a lay person would not consider that the sharing of an image on a private non-work related Facebook page, with a list of friends that did not include the Claimant, was an act done in the course of employment. The fact that a colleague in the list of friends had received it and then shown the image to the Claimant was not relevant to whether the security guard’s act of sharing it on Facebook had been done “in the course of employment.” The EAT noted that the showing of the image by the security guard’s colleague (their Facebook friend) could have been regarded as done in the course of employment, but that was not the case that was argued in the case, and the Claimant was claiming that it was the conduct of the security guard that had amounted to harassment (not of the colleague that showed the image to the Claimant).

The EAT noted that it was not possible or desirable to set out hard rules and guidance as to when such behaviour should incur liability on the part of the employer, especially in view of the widespread and increasing use of social media, and the ever- developing nature of social media. It was accepted by the EAT that there could be occasions when the sharing of an image on Facebook may be solely or mainly done in the course of employment. It also noted that just because the employer decided to take disciplinary action against the employee in question (the security guard) did not mean that that the conduct in question is necessarily done “in the course of employment.” In other words, employers may, depending on their policies and procedures, take action against an employee over a matter that occurred or arose outside work.

This case illustrates some of the problems in the use of social media by employees, and the need for employers to have clear guidance on the use and availability of social media to their staff. The case also shows that it can be difficult to determine liability for offensive postings on social media platforms. Employers should take all reasonable steps to introduce and implement policies to determine what and how social media can be used by their staff (if at all) during work or in the workplace, as only through the introduction, dissemination and training on such policies can employers have any real degree of comfort in defending cases such as this one. We can of course provide you with help and assistance in drafting and implementing suitable policies for your business.    

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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