When is an employer liable for an employee’s social media post?

The use of social media is ever-increasing, and the majority of us regularly tweet, post and share our thoughts online.

In fact, social media management company Hootsuite says 3.48 billion people now use social media, an increase of 9% from 2018. Put another way: 45% of the total world population’s using social networks.

And while being online is a great way of keeping up-to-date with current affairs, networking or what people are up to, at what point do employers become potentially liable for any unhelpful, aggressive or discriminatory comments made by staff?

And, what can employers do to stop this from happening?

A recent case before the Employment Appeal Tribunal, Forbes v LHR Airport Limited, looked at the use of social media, and at what point posts will be considered to be made ‘in the course of employment’.

Background

The respondent, Ms Stevens, posted a racially offensive picture on her private Facebook page.

This image was shared with her Facebook friends, including a colleague who showed the post to the claimant, Mr Forbes, who was shocked and appalled and immediately complained to his line manager and raised a grievance.

Ms Stevens apologised and received a final written warning.

Thereafter the claimant was rostered to work alongside Ms Stevens. When he raised a concern, he was moved to another location. He then raised a number of claims at the employment tribunal in relation to unlawful harassment relying, in part, on the Facebook post.

The employment tribunal dismissed the complaint.

While the image itself was capable of offence on racial grounds, the act of posting it was not done in the course of her employment and the respondent, Ms Stevens, could not be found liable.

The claimant appealed this decision.

Employment Appeal Tribunal decision

The Employment Appeal Tribunal made the following findings —

  • The phrase “in the course of employment” is a question of fact that each tribunal will have to decide on in light of the circumstances presented
  • Ms Stevens’ Facebook page was not work related and her post was shared with a list of friends that did not include the claimant. Therefore, her post was not in the course of employment
  • The Employment Appeal Tribunal also considered factors including Ms Stevens was not at work when the image was posted; the image made no reference to the respondent; and the respondent’s equipment was not used to share the image
  • The employer having taken disciplinary action against Ms Stevens did not imply acceptance that her actions were in the course of employment. It was pointed out that it may be perfectly appropriate for an employer to discipline or dismiss an employee for singing racist songs at a football match because, while not in the course of employment, it could bring the employer into disrepute
  • The tribunal briefly considered the colleague’s action of showing the image to the claimant may be construed as being in the course of employment and may potentially have amounted to harassment

Advice

The tribunal noted there were scenarios in which an employee’s social media posts could be considered to be in “the course of employment”, for example if the account is used solely or principally maintained for the purposes of communicating with work colleagues, or is routinely used for work-related matters.

This might be more commonly the case with employees’ use of channels like LinkedIn.

This raises broader issues.

What if Ms Stevens had been at work when the image was shared? What if her Facebook page was public rather than private?

The tribunal was at pains not to set down any hard guidelines and stated each case will turn on its own facts.

It’s also worth noting the tribunal regarded the employer favourably for taking the conduct of Ms Stevens seriously and giving her a final warning; therefore, it was held the respondent did take reasonable steps to prevent its employees from doing the discriminatory act in question.

Social media is becoming an increasingly important factor in all our lives and it is likely these cases will become more frequent, so the best approach for employers is to make sure the appropriate policies and procedures are in place.

Natalis Milne

Based in the Aberdeen office, Natalia is a second-year trainee solicitor.

Posted, 03 September 2019 by Natalia Milne
Categories: Employment