To what extent is an employer liable for discriminatory or offensive social media postings outside of the workplace?

Whilst blogs and similar media can present a unique opportunity for creating a positive image of your business the other side of the coin is that legal liabilities can arise from the use of social media by employees whether for business or private purposes.

In the recent case of Forbes v LHR Airport Limited, the Claimant, who was a security officer, took offence to a racially abusive image posting on Facebook by a colleague.  The Claimant only saw the posting because one of her colleagues was a Facebook friend of the colleague who posted it, and she had shown it to her.

The Employment Tribunal and the Employment Appeal Tribunal (EAT) dismissed the Claimant’s claims against her employer for harassment, victimisation and discrimination on the grounds of race,  holding that the individual who had posted the offending item had not acted in the course of her employment. She had not posted the images whilst at work or on a work computer and they were shared amongst a private group of individuals which did not include the Claimant, and made no reference to her employer. In short they were a private matter and not the responsibility of her employer.

The EAT held that there is no hard and fast guidance as to whether something is done in the course of employment, either in the virtual landscape or the physical work environment, (and therefore is something for which the employer is liable potentially), and each case must be decided on its particular circumstances and facts.

It is possible for an employer to fairly dismiss an employee for conduct outside of work. The key issue is for employers to consider whether or not the employee’s misconduct goes to the employment relationship or whether it affects their ability to do their job.  Purely private use, on a private computer, in an employee’s own time is unlikely to be actionable unless it expressly breaches a policy and/or is likely for example to damage the employer’s reputation or is wholly incompatible with the position the employee holds.

Similarly, for an employer to be vicariously liable for the offensive and discriminatory activities of one of its employees outside of work, a clear connection with the workplace is necessary.  Using workplace equipment, posting in work time, referring to the employer or colleagues or an employer’s event or activity are all factors to be taken into account.

It is essential in this day and age to have clear and comprehensive Social Media Policies as well as policies for monitoring use of email and internet and suchlike.  Potential responsibilities can be defined as well as liabilities and potential disciplinary offences.  As social media evolves and new formats and platforms emerge,  the Social Media Policy should be reviewed and updated.  Without this, it is difficult to not only police but more importantly enforce effectively without the risk of a claim of unfair dismissal.  Policies should be consistently and fairly applied and enforced.

As ever, if allegations of potential misconduct are made, a full and fair investigation should be carried out prior to any disciplinary hearing. It is surprising how many high profile cases result in findings of unfair dismissal where employers have overstepped the mark in terms of interpreting their own policies or have, in the view of the Tribunal or Appeal Tribunal, been unreasonable in concluding that reputation has been damaged, for example.