Social media | Can employers be held liable for posts employees make outside of work?

All too often, ill-judged posts on social media become a work issue, with ramifications for both employees and employers.

We’ve seen a number of high-profile cases recently where social media use has become an employment issue, such as Danny Baker being fired by the BBC over a potentially offensive tweet that appeared to mock the Duchess of Cambridge’s racial heritage.

Cases such as this are largely attributable to a lack of consensus over what is and isn’t acceptable online behaviour and the tricky question of where the boundary lies between a person’s work and home life. For many employees, what they do and say outside of work is their business; however, the reality is that making derogatory or offensive comments online can have serious repercussions for their employer. Off-the-cuff remarks by employees can have a long-lasting damaging effect on an employer’s reputation, especially if the employee’s profile or posts directly affiliate them with the company.

From a legal perspective, when it comes to social media use, employers need to be aware of vicarious liability. This means that employers will be held liable for the actions carried out by their employees in their course of their employment. The issue here is the phrase “in the course of their employment”, as it is often unclear what qualifies; depending on the circumstances, this may include conduct that takes place off work premises and outside of normal working hours.

A recent case has shed some light on the circumstances in which an employee’s social media activity becomes a work issue (and, more specifically, when it does not).

Forbes v LHR Airport Ltd

The claimant in this case worked as a security officer at London Heathrow Airport. His colleague, DS, posted an image of a golliwog on Facebook, with the caption “Let’s see how far he can travel before Facebook takes him off”.

The claimant was shown the image by another colleague, who was friends with DS on Facebook. The claimant himself was not a Facebook friend, so would likely have never seen the image otherwise.

Finding the post offensive, the claimant made a formal grievance to his employer. It was upheld, and DS was disciplined. That may have been the end of the matter; however, the claimant was then rostered to work alongside DS. When he complained, the claimant was moved to another location without explanation.

A golliwog is a fictional, black, minstrel-like character that appeared in children’s books in the late 19th century and is now widely regarded as racist due to its stereotypically crude features.

“In the course of employment”

Feeling that he had been unfairly treated for complaining about the image, the claimant brought a case before an Employment Tribunal, claiming harassment, victimisation and discrimination on the grounds of race. However, the Tribunal dismissed the claims, holding that the incident concerning DS posting the potentially offensive image had not occurred in the course of her employment.

This finding was based on a number of factors:

  • DS had not posted the image while at work, or on a work computer;
  • She had shared the image in a private group that the claimant was not a part of; and
  • The post made no reference to her employer or another employee and did not directly link her to the company in any way.

Importantly, the Tribunal found that the employer had taken reasonable steps to prevent discrimination, including enforcing its own policies, which prohibited discriminatory posts, by taking disciplinary action against DS.

The Tribunal also concluded that relocating the claimant did not amount to victimisation, as it was merely a means of preventing the claimant and DS from having to work together, and the manager who made the decision had been unaware of the incident.

Appeal

The claimant subsequently appealed; however, this was dismissed by the Employment Appeal Tribunal (EAT).

The EAT’s decision was based on the fact that the alleged act of harassment in this case was the posting of the image. While the fact that it was shown to the claimant by a colleague meant there was some connection to the workplace, this was not the argument put before the Tribunal. Had the claimant pleaded the case from this angle, the outcome may have been different.

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So what can we learn from this case?

The judgment in this case confirms that the phrase “in the course of employment” is to be interpreted in its most obvious, natural sense. In other words, the average person wouldn’t consider posts made on a private Facebook page, that is in no way affiliated with their work, to have been done “in the course of their employment”. Despite there being ambiguity over where the line is drawn, the EAT has said that it is not possible, or even desirable, to lay down any definitive guidance or define a clear boundary in this regard.

However, the outcome of this case does not mean that a court will never find posts made on social media to have been made “in the course of employment”. Cases involving social media will turn on their facts, and a Tribunal will take a number of elements into account when deciding if the connection to employment is sufficiently strong, including:

  • Whether the employee’s profile identifies them as working for the employer;
  • The level of actual harm or reputational damage;
  • The amount of people likely to have seen the post (based on the employee’s privacy settings, etc.)
  • Whether the employer has a clear policy in place outlining its expectations in respect of social media use.

For employers, the best way to defend discrimination or harassment claims is to make sure you can demonstrate that you have taken “all reasonable steps” to prevent such acts occurring. In practical terms, this can be achieved by having a clear policy in place to deal with social media issues, providing training on the policy, and ensuring complaints are dealt with promptly and consistently.

 

Need help dealing with an employee's social media activity?

If you’re unsure how to respond to an employee’s online behaviour, Ellis Whittam’s experienced Employment Law specialists can advise on the best course of action and guide you through the disciplinary process if appropriate. We can also draft a robust social media policy, which will make your expectations of employees clear and be instrumental in successfully defending claims.

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