No one can escape social media anymore. It is everywhere. Even when we go to work, our personal and work devices will usually have social media apps installed on them. Along with this there is the continuing blurring of time spent at home and at work. Social media is no exception. Most of us will have friends on our social media accounts who are our work colleagues and we have all seen posts where individuals tag one another in memes about work or dreading Monday morning. This blurring is where it gets difficult for employers to draw a line between what acts are private and what is work-related. The recent case of Mr O Forbes v LHR Airport Limited UKEAT/0174/18 highlights this.

 

The facts were this. Ms S, an employee of Heathrow Airport, shared an image of a golliwog on her private Facebook page, accompanied by the message, ‘Let’s see how far he can travel before Facebook takes him off.’ Ms S was Facebook friends with some of her colleagues from work. One of those colleagues showed Mr F the post from Ms S. Mr F was not friends with Ms S on Facebook but Mr F found this to be a racially offensive image and complained of harassment to his employer. Ms S apologised and received a final written warning. After being asked to work alongside Ms S again he raised further concerns. Mr F then made a complaint to the Employment Tribunal for harassment, victimisation and discrimination. Mr F was not successful because the post was not deemed to have been an act done ‘in the course of employment’. Therefore Heathrow Airport was not liable.

 

The reasons why the post was not considered to be in the course of employment included:

 

  1. The post was not made during work time.
  2. The list of friends with whom the image was shared largely did not include work colleagues.
  3. It made no reference to her employer.
  4. No other employees were mentioned in the post.
  5. Ms S used her own device to make the post. No work equipment was used.

 

However, the EAT accepted there may be many circumstances in which sharing an image on Facebook could be considered to be done in the course employment, for example, where the Facebook page is primarily used for work purposes. It was also noted that employers might consider it appropriate to take action for employee conduct that occurred outside of employment. But, that does not necessarily mean the conduct took place, ‘in the course of employment’.

 

Employers cannot prohibit employees from being friends with work colleagues on social media sites or physically stop an employee posting something offensive. But what they can do is have a good quality social media policy in place that highlights what conduct is expected from their employees. This can form part of an employer’s ‘reasonable steps’ defence to combat against liability for unlawful acts of its staff of discrimination or harassment under the Equality Act 2010, whereby it has taken all reasonable steps to prevent its staff from acting unlawfully.

 

In this case the Tribunal highlighted that the employer had taken reasonable steps because it had a clear social media policy addressing what behaviour was unacceptable, it was brought to its employees’ attention and it took the initial complaint by Mr F very seriously by giving Ms S a final written warning.

 

By either having a well-drafted social media policy in the staff handbook or as a stand alone policy, there are a number of important benefits to have a policy:

 

  1. Your employees know what is expected of them and know the impact that social media can have on their employer.
  2. It is clear what conduct would amount to gross misconduct. For example, comments that harm the company’s image or could amount to the harassment or bullying of other employees.
  3. Clarifying whether employees can use company IT equipment to access their personal social media accounts.
  4. Employees know they cannot make negative statements about the employer, employer’s staff, or third parties, such as clients or competitors.
  5. Employees are clear that they cannot disclose confidential company information on social media.
  6. Employees are aware they should make it clear on their own social media that this reflects their own views only, i.e. not the views of the employer.

 

Do be aware that an employer’s social media will only be as good as you make it. We advise it is widely available, it is brought to the attention of all staff, consider training on it and ensure the policy is enforced consistently. Consider disciplinary action if an employee breaches it and respond promptly to allegations of discrimination or harassment involving social media just as you would in another context. Consider monitoring employee online activity, but bear in mind this must be proportionate and employees must generally be informed of this. Finally, regularly review and update your social media policy so it is in line with current law and technology, which can move at a rapid pace.

 

If you would like help on a social media issue or assistance with putting in place a social media policy, please get in touch with our Employment Team.