Discrimination and social media in the workplace

25th September 2019

Discrimination and social media in the workplace

What is discrimination in the workplace?

Natalie harasses John if she does something in relation to a protected characteristic (race, sex, sexual orientation, age, disability etc) which has the purpose or effect of violating John’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for him. If Natalie harasses John ‘during the course of employment’ then the employer will be vicariously liable for her conduct. It will only have a defence if it can show that it took all reasonable steps to prevent the harassment.

How can discrimination cross over from social media to the workplace?

In Forbes v LHR Airport, the claimant’s colleague, S, shared a golliwog image on her private Facebook account accompanied by a message saying, ‘let’s see how far he can travel before Facebook takes him off’. One of S’ Facebook friends (BW), also a colleague of the claimant, showed the image to the claimant. He lodged a grievance about S’s behaviour. The employer investigated, S apologised and was given a final written warning. When the claimant was subsequently moved to work with S, he went off sick and submitted a claim for harassment.

The employment tribunal held that S’s actions were not done in the course of employment. She wasn’t at work at the time that she posted the image and message. It was done on her own personal computer. It was posted in a private group which didn’t include the claimant and she didn’t mention any colleagues or her employer in the post. The EAT agreed. BW’s act of showing the claimant the image could have been done in the course of employment, but his case was based solely on S posting the image, not on BW’s actions. The EAT said sharing an image on Facebook might be in the course of employment where the Facebook page is used mainly for work purposes but that didn’t apply in this case. It didn’t follow from the fact that the employer had dealt with the grievance, that the act was done in the course of employment either. Depending on policies, employers can take action for conduct which takes place outside of work.

What can employers do to prevent this?

The introduction of technology which allows employees to work online at home has undoubtedly blurred the line between work and home. The fact that colleagues can be ‘friends’ online on social media websites but nowhere else complicates matters further. The EAT was clear not to give guidance on such matters because these cases are fact driven. However, the greater the crossover between work colleagues and social media friends, the more likely it is that online conduct might be considered to be done in the course of employment. A comprehensive social media policy, which includes examples of inappropriate conduct outside of work, is therefore essential.

For guidance on your social media policy or for a review of your existing policies, please contact Marie Allen on 01473 298133 or email [email protected].

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