The consequences of the misuse of social media may be significant for both companies and their employees. Our Employment and Commercial Litigation teams have previously looked at how a business that encourages employees to use social media for professional networking protects itself from competitive risk when a key employee leaves. We also considered how such an employee should navigate contractual restrictive covenants. In the future we will look at the problem of an inappropriate workplace relationship involving a senior representative of a business becoming public knowledge on social media – this may have employment and boardroom implications.
In this article we address the problem of discriminatory posts on social media, especially where the author can be identified as an employee of a particular company. Using realistic scenarios which may have familiar elements to both businesses and employees, we discuss the rights and potential liability of the employee, the business and any other employee or person affected by the posts, and we give practical suggestions of how to avoid negative consequences.
When personal views on social media have wider implications
On their personal Facebook account an employee posts inappropriate comments about the sex of new recruits in companies in recent months, highlighting the example of a particular new employee in your business. The offending employee’s Facebook profile includes the information that they work at your company. The post receives several comments and re-posts. 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 this, you are contacted by one of your regular suppliers who complains about the post and says that they want to cancel their current order with you, and to reconsider future orders.
As the employer you think that this is a disciplinary matter because one member of staff publicised an inappropriate comment about another, and you plan to follow your company’s disciplinary procedure.
However, your employee says that the comment was made on their personal social media account, 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 amounts to harassment, and 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.
Can you be disciplined at work for something you say on your personal social media account?
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 it is conduct 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; a person’s sex is one of these.
Disciplinary action, at least in the form of an investigation process, is a likely and reasonable step for an employer to take if an employee is reported to have used discriminatory language in a social media post regardless of whether this was a personal account. Recent case law requires employers to look at the context of what was said, evidence of any impact on a company’s business and whether there is any real risk of discrimination or harassment to one of its employees.
In the scenario posed in this article, the employee would be at a real risk of disciplinary action which may well lead to a finding of gross misconduct. The employer has suffered reputational damage resulting in one of its suppliers cancelling an order. The fact that the employee’s social media profile says that they work for the employer means that customers may form the view that the employee is representing the views of the employer.
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 this may give the employee the right to claim that any dismissal for this social media post was procedurally unfair even if the actual decision was substantively fair.
Can an employer be liable for the actions of their employees on personal social media accounts?
Employers may be liable for the actions of their employees if there is sufficient connection between the wrongful act and the individual’s employment. This is known as “vicarious liability”.
Under anti-discrimination legislation such as the Equality Act, an employer may be liable to the person suffering 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.
Whether or not there is a sufficient connection between the discriminatory act, harassment or defamation and the employee's employment is fact dependent. A discriminatory act does not have to have taken place in an employer’s office or premises for them to be vicariously liable. Employers have been found to be liable for the actions of their employees at out of work events such as the work Christmas party or informal drinks with colleagues. 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[1]. There must something more to make an employer vicariously liable.
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 giving training around the topics surrounding discrimination, this may be a defence. However, proving this may be a high bar for an employer if other circumstances indicate that the employee could reasonably be thought to be acting in the course of their employment.
Does the employer have a case against its employee for defamation?
Although the comments of the employee in the scenario relate to another employee, if the employee’s association with the employer adversely affects the employer’s business and lowers the reputation of the employer in most peoples’ minds, the employer may have a claim of defamation against the employee. The employer would have to show that the employee’s statement was published to other people via the social media app, and that it had caused or was likely to cause serious financial loss to the employer - such as a supplier cancelling an order in response to the post.
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 want to consider what pursuing a claim for defamation will achieve. It may be better not to draw any more attention to the issue. Alternatively, the employer may consider using social media itself to rebut the defamatory comments and to actively manage its own reputation.
What can businesses and employees do to avoid legal consequences from the use of personal social media accounts?
- Businesses should develop and implement clear social media, anti-discrimination and defamation policies and ensure that all employees are aware of these by giving regular training. They should also deal effectively with any employee complaints that do arise.
- Employees should take notice of their employer’s social media and anti-discrimination policies and regulate their actions accordingly. They should check that personal social media accounts such as Facebook do not link them to their employer. They should be aware that their own protected freedom to make comments on their private social media accounts may it certain circumstances impinge on others’ own protected rights and may result in disciplinary action.
- Businesses and employees should consider professional advice - from the beginning of employment relationships to its end – and especially if they faced with claims of discrimination, harassment or defamation.
Our Employment team has considerable experience helping you to navigate employment law, creating policies and managing grievances and disciplinary procedures. Our Commercial Litigation team has specialist expertise in protecting and restoring reputations. Please get in touch if you have any concerns about issues relating to social media and your workplace.
[1] Forbes v LHR Airport Ltd [2019] I.C.R. 1558 @37
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
