Case law requires an employer to consider all the facts.
The consequences of social media misuse can be significant for companies and their employees. While good news travels quickly, bad news often travels at the speed of light. Likewise, a post on social media can do harm on a global scale in the blink of an eye.
So, what happens if an employee uploads a discriminatory post onto social media, especially where the author can be identified as an employee of a particular company?
Posting Personal views on social media
Consider this. On their personal Facebook account, an employee posts inappropriate comments about the sex of a new employee in your company.
The offending employee’s Facebook profile includes details that indicate they work for your business. The post receives several comments and reposts. You become aware of this when you receive a report from the manager of the newly recruited employee mentioned in the post, who confirms that they have been shown the post. They are upset and believe that the post is humiliating and degrading. Shortly after, you are contacted by one of your regular customers who complains about the post and says that they want to cancel their current order with you and will reconsider future purchases.
As the employer, you consider this a disciplinary matter because one member of staff publicised an inappropriate comment about another.
However, your employee says the comment was made on their personal social media account and was intended only for their Facebook friends. They did not express their views in the workplace and have not treated the newly recruited employee or any others who share their sex any differently. They feel that your company cannot penalise them for expressing their own views outside of work.
The newly recruited employee says that what has happened constitutes harassment and that they now find it difficult to continue working in your business. They have not taken any further action at this stage, but you are aware that they feel that you, as the employer, are liable for the actions of your employee and should compensate them accordingly.
What the equality act says
While an employer cannot unreasonably interfere with an employee’s right to express their beliefs in public or outside of work, interference may be allowed if these views could damage the employer’s reputation with its customers, or if the conduct is such that the employer has a legal obligation to protect. The Equality Act 2010 obliges employers to protect their employees from discrimination and harassment. There are nine protected characteristics within the Equality Act; sex is one of these.
Disciplinary action, at least in the form of an investigation, is a reasonable step for an employer to take if an employee is reported for using discriminatory language in a social media post, regardless of whether it was on a personal account. Recent case law requires employers to consider the context of what was said, evidence of any impact on the company’s business, and whether there is a real risk of discrimination or harassment against one of its employees.
In our scenario, the employee would be at a real risk of disciplinary action, which may well lead to a finding of gross misconduct.
However, the employer must follow a fair and thorough disciplinary process in which the employee is given copies of any evidence relied upon and is given the opportunity to put forward their own version of events or mitigation. Failure to do so may give the employee the right to claim that any dismissal arising from this social media post was procedurally unfair.
Liability for the actions of employees
Employers may be liable for the actions of their employees if there is a sufficient connection between the wrongful act and the individual’s employment. This is known as ‘vicarious liability’.
Here, an employer may be liable to the person who suffered discrimination or harassment if the employee responsible for this conduct acted in the course of their employment. Similarly, if one employee is defamed by another during the course of employment, the employer may be vicariously liable to the defamed employee.
A discriminatory act does not have to have taken place in an employer’s office or premises for them to be vicariously liable. Therefore, even if an offending comment is made on a personal social media account, an employer may be vicariously liable for this if a reasonable person would connect the act on social media with the employee’s employment.
The fact that an employer takes disciplinary action against an employee because a discriminatory social media post is in contravention of its social media policy or damaging to the reputation of its business does not then imply that the employee acted in the course of their employment – as was found in Forbes v LHR Airport Ltd (2019). There must be something more to make an employer vicariously liable.
It may be a defence if an employer has taken all reasonable steps to prevent the discriminatory act – such as having clear anti-discrimination and social media policies, as well as providing training on topics related to discrimination. However, proving this may be a high bar for an employer.
An employer’s case against employee for defamation
Although the employee’s comments in the scenario relate to another employee, if the employee’s association with the employer adversely affects the employer’s business and lowers the employer’s reputation in most people’s minds, the employer may have a claim for defamation against the employee. The employer would have to show that the employee’s statement was published to others via the social media app and that it had caused, or was likely to cause, serious financial loss to the employer.
Depending upon the circumstances in which the publication was made, the employer may also have a claim for malicious falsehood if it can also be shown that the employee’s statement was objectively false, referenced the employer, was published with an improper motive, knowing it was false or with a reckless disregard for the truth, and caused the employer to suffer a loss that is capable of quantification.
However, even if an employee has defamed an employer on social media, the employer may be better off not drawing any further attention to the issue. Alternatively, the employer may consider using social media itself to rebut defamatory comments and actively manage its reputation.
Summary
Social media, like it or not, is here to stay. And while it has created new opportunities for individuals, businesses and organisations to connect, it has opened up new avenues for legally expensive mischief.