Social Media – are Employers liable for Employee Activity?

Posted on November 12, 2019

According to the Equality Act 2010, Under Section 109(1), employers usually take on the legal liability of any acts carried out by their employees during the course of their work.

Recently we’ve come across a case where the company was cleared of liability for an employee who had posted an offensive picture posted on her private Facebook account because it was seen that her actions were not taken in the course of employment.

The employee had posted a golliwog image with a message saying, ‘Let’s see how far he can travel before Facebook takes him off.’ The image was shared with a fellow colleague who then showed it to a security officer who was deeply offended by it. He took the matter further by complaining to his manager saying that racist images were being circulated at work.

Initially, the investigation discovered that the employee had innocently uploaded the image and was told that no further action would be taken unless a formal complaint was received. However the person complaining wasn’t happy so continued with his complaint by raising a grievance, which was then investigated by another manager within the business and disciplinary procedures were followed. Despite the employee apologising, once she realised the implications of the image, she was disciplined and given a final warning. It was considered that her behaviour breached the dignity at work policy.

Employment Tribunal

Both employees were posted to work alongside each other but in time one was moved to another site. The complainant felt that he was being discriminated against, was signed off work sick, and issued proceedings to Employment Tribunal alleging harassment, victimisation and discrimination.

After a hearing the Employment Tribunal dismissed the complaint. Whilst it was acknowledged that the image could be viewed as racist the employee wasn’t at work at the time nor had she used company equipment to post to her private Facebook page. She had not made reference to the company or her colleagues and wasn’t FB friends with the complainer either.

Susan Mayall, Head of Employment Law at Pearson Solicitors and Financial Advisers comments, “In the end this case ended favourably for the employer but it does act as a timely reminder of the importance of having an Equality and Diversity policy as well as a Social Media policy in place. I would also like to stress that these policies are understood by employees and that they are implemented when necessary.”

For further information or advice on Discrimination, Equality and Diversity, Social Media or any aspect of Employment Law please contact our Employment Solicitor Susan Mayall on 0161 785 3500.

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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