With the steep (and continuing) rise in the use of social media and daily reliance by some people on it, employers have had to adapt over the last ten years to the effect of that on the workplace.
It is recognised that although most people use social media privately to communicate with friends and share things online, sometimes the actions of staff on social media outside of work are ill thought out and can affect their role within work, damage the reputation of their employer and, at worst, result in an employer being vicariously liable for discrimination/harassment.
Forbes v LHR Airport Limited
Background
In this recently reported case, a colleague of the Claimant, DS, posted a discriminatory image on his Facebook account of a golliwog with the caption, “Let’s see how far he can travel before Facebook takes him off”.
One of DS’ colleagues, BW (who was a Facebook friend), showed it to the Claimant (who was not a Facebook friend). The Claimant was upset and raised a formal grievance which was upheld, and DS was disciplined. When he was scheduled to work alongside DS, the Claimant complained and he was moved to another location without explanation.
Employment Tribunal proceedings
The Claimant brought claims for harassment, victimisation and discrimination on the grounds of race but his claims were dismissed on the basis that DS had not acted in the course of her employment. She had not posted the image while at work or on a work computer. It was shared amongst a private group, which did not include the Claimant, and it made no reference to her employer.
The EAT dismissed an appeal by the Claimant against this ruling. Whether something is done in the course of employment, either virtually or the physical work environment, it is a question of fact for a tribunal to consider on a case to case basis. It is more challenging to assess with online interactions, especially where a personal social media account is used for work purposes that might create a connection to work. In the case of Forbes v LHR Airport Limited, the alleged act of harassment was the posting of the image by DS rather than BW showing it to the Claimant, which had a closer connection to the workplace, and could have have led to a different outcome in the case.
Comment
Having a social media policy or incorporating one to your IT and Communications Systems Policy is vital in terms of setting out what type of conduct you consider inappropriate, the extent to which outside activities might be addressed at work and the consequences of breaching the rules.
How can Nelsons help?
At Nelsons, we can review your social media policy to ensure it is fit for purpose or if you do not have one yet, we can provide one tailored to suit your organisation. For further information, please contact our Employment Law team in Derby, Leicester or Nottingham on 0800 024 1976 via our online form.