Are you liable for your Employees’ behaviour on social media?

Mr O Forbes v LHR Airports Ltd: UKEAT/0174/18/BA

Takeaway

Inappropriate behaviour on social media can be a real headache for employers. This case reminds us that employers are not always responsible for the behaviour of employees, but that managers will have to take a case by case view.

Legal background

Over the past few years social media has become an integral part of everyday life, and many employees will have continuous access to these platforms, both at work and home. When inappropriate behaviour takes place on social media, employers often have to make difficult decisions about whether to discipline the employee concerned and may face claims arguing that they are responsible for the actions of the employee.

If the behaviour causes a breakdown in relationships with colleagues, employers will also have to consider victimisation rules when deciding how to handle the fall out.

The facts

Mr Forbes and Ms Stevens worked at London Heathrow Airport. Ms Stevens posted a racially offensive image on her personal Facebook account, along with a message challenging people to share the image before Facebook removed it. A work colleague who was friends with Ms Stevens on Facebook saw the post and showed it to Mr Forbes.

Mr Forbes complained to his line manager that racist images were being circulated in the workplace and Ms Stevens was disciplined and given a final written warning.

Mr Forbes remained unhappy and did not wish to work with Ms Stevens. When he was moved to another work location, Mr Forbes claimed he had been victimised by LHR for his complaint and also claimed that they should be held vicariously liable for discrimination.

The key question for determining whether the employer was liable for Ms Stevens’ actions was whether the behaviour had happened ‘in the course of employment.’ The Tribunal found that it had not and the appeal confirmed this decision.

The Court said that non-lawyers would not consider that the sharing of an image on a private Facebook page was done in the course of employment. She was not at work when she created the post and did so on her personal device. The Court emphasised that this would always be a factual decision and there may be circumstances, such a social media account used primarily with colleagues, where a different conclusion would apply.

Mr Forbes also argued that the fact LHR had disciplined Ms Stevens was evidence they considered her behaviour to have occurred in the course of work. The Appeal Court also disagreed with this. They said that an employer can discipline an employee for social media posts for a number of reasons – including bringing them into disrepute. It did not mean that the Facebook post was made in the course of work.

Top Tip

If you need to discipline an employee for inappropriate use of social media, think about why you are doing so. Is the employee being disciplined for workplace behaviour/behaviour in the course of work, or is the action because of reputational or other damage to your company?